Congress has spent much of the past year grappling with a heartbreakingly difficult issue: victims who are prohibited by Section 230 of the Communications Decency Act from suing the websites where they were sex-trafficked.
Unfortunately, some of the debate has been sidetracked by a misunderstanding of how the statute works and a recent court case that interpreted it. Section 230 is one of the most important laws in the history of the Internet, and before we amend the statute to fix problems, we need to understand precisely what the problems are.
Twenty-six words within Section 230 shield websites from many types of claims arising from user content: “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.” For example, if a newspaper publishes a defamatory article, the subject can sue the newspaper publisher for defamation. But under Section 230, if a user posts a defamatory comment on Twitter, the subject cannot successfully sue Twitter for defamation (but can sue the tweeter).
I’m writing a book about Section 230 for Cornell University Press, titled The Twenty-Six Words that Created the Internet. The title is not an overstatement. Without Section 230, it is difficult to conceive of social media, consumer review sites, and other user-focused online platforms existing in their current forms.
If companies are exposed to costly lawsuits for their failure to block harmful online content, they will have two choices. First, they could hire enough moderators to screen every tweet, post, and user picture, but that would be extremely expensive and impractical. Second, and more likely, they could reduce or entirely stop the ability of users to contribute their ideas and thoughts. The Internet would change from the public square that it is today to an electronic version of a traditional newspaper or magazine, a one-way interaction. It’s not a coincidence that the most successful Internet companies are based in the United States.
But there are some legitimate criticisms of such broad immunity. Some victims of defamation and other harms cannot identify the person who created the content and are left unable to recover for their harms. In the past two decades, Section 230 has prevented some truly sympathetic victims from suing websites for the harms that they suffered.
Outrage and calls for reform
Perhaps no case was more troubling to me than a lawsuit brought by plaintiffs who were victims of sex-trafficking against Backpage.com, the site where they were advertised. A district court granted Backpage’s motion to dismiss, relying on Section 230 immunity, and last year the US Court of Appeals for the First Circuit affirmed the decision.
The First Circuit’s decision understandably sparked outrage and calls for reform. Members of Congress have presented and refined a number of legislative proposals and held three hearings this year. I testified at one of the hearings and argued that Congress should consider an explicit exception to Section 230 that allows lawsuits and state criminal prosecutions against platforms that knowingly run sex-trafficking advertisements. Victims of sex-trafficking should be able to recover damages from these sites.
If Section 230 is standing in the way of that, Congress should craft an exception that targets bad actors without causing a chilling effect on legal content entirely unrelated to sex trafficking. The members of Congress who have proposed legislation to address this problem have shown great compassion for victims of these horrific crimes while also understanding the need to preserve the core protections that Section 230 has provided. Although their bills differ in terms of how to structure the exception for sex trafficking, it has been heartening to observe members and staffers from the House and Senate work thoughtfully to address this problem.
More troubling to me, as a professor who has studied the overall benefits of Section 230, is the broader discussion that this debate has prompted in the media and technology policy community. Some have argued we must restate the purpose or scope of Section 230 as a whole, well outside of the sex trafficking issue. Is the immunity so broad that it would protect a website that actively contributes to the creation of illegal content?
Absolutely not. The First Circuit’s decision was an outlier for two reasons.
First, the First Circuit issued its opinion before the release of a Senate Investigations Subcommittee report that concluded that Backpage “knowingly concealed evidence of criminality by systematically editing its ‘adult’ ads.” And a July 2017 Washington Post article reported that a Backpage contractor “has been aggressively soliciting and creating sex-related ads, despite Backpage’s repeated insistence that it had no role in the content of ads posted on its site[.]” These facts simply were not in the record for the First Circuit and did not inform its decision.
Second—and here is where we get into the legal weeds—the First Circuit’s opinion did not address an argument that very well could have led to a conclusion that Backpage was not entitled to Section 230 immunity.
For a website or other online service to receive Section 230 immunity, courts require them to demonstrate three elements of the twenty-six words in Section 230: (1) that they are an interactive computer service; (2) that the information at issue in the lawsuit was provided by another information content provider; and (3) that the lawsuit treats the defendant as the publisher or speaker of information.
There is no dispute that Backpage and other websites are interactive computer services. The challenges to section 230 typically focus on one or both of the other prongs.
Plaintiffs increasingly have had some success in arguing that the website—and not a third party—was the information content provider. Section 230 defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” So plaintiffs argue that the website somehow contributed to illegal user content, at least in part, and therefore cannot claim immunity.
For instance, in 2008, the US Court of Appeals for the Ninth Circuit ruled that a roommate-matching website could not use Section 230 to shield it from claims that it violated housing discrimination laws by requiring users to answer questions that discriminated by gender and other protected categories. As I found in an article in Columbia Science & Technology Law Review last year, courts are increasingly agreeing with that reasoning and denying immunity because websites somehow contributed to illegal user content.
Assuming that the information in the Senate report and Washington Post is correct, there is a strong argument that Backpage contributed, at least in part, to the allegedly illegal sex trafficking advertisements and was therefore an information content provider. Indeed, in 2015, the Washington state Supreme Court ruled that Backpage could not claim Section 230 immunity in a similar suit because it helped to develop the advertisements and therefore contributed to the illegal content.
But that isn’t the argument that was made in the First Circuit. Rather, the plaintiffs argued the third prong—that their lawsuit did not seek to hold Backpage liable as a publisher or speaker. They focused on factors such as the procedures for uploading photos and the lack of phone number verification and argued that those were acts other than publishing or speaking. In their initial brief in the district court in the case, the plaintiffs wrote that they were not alleging during the early stage of litigation that Backpage was an information content provider because “those are fact-based inquiries best decided after discovery.” Their reluctance to make the argument is understandable, as federal courts have high pleading standards.
Supporters of the plaintiffs argued in an amicus brief that Backpage was an information content provider, but the First Circuit decided the case based only on the argument that the plaintiffs raised in district court: that the lawsuit did not treat Backpage as a publisher or speaker. The First Circuit disagreed with this argument, and the US Supreme Court declined to review the ruling.
A different approach
The plaintiffs have filed a second lawsuit against Backpage in Massachusetts federal court, incorporating the claims from the Senate report. Backpage again moved to dismiss, and this time the plaintiffs argued that Backpage is an information content provider. Judge Leo T. Sorokin has scheduled a January 8 hearing on the motion.
It is impossible to predict the outcome of litigation with any degree of certainty, but I believe that this argument stands a better chance of surviving a motion to dismiss.
The First Circuit’s ruling in favor of Backpage does not require Congress to redefine what it means to be an information content provider under Section 230 because that was never even an issue in the First Circuit’s case.
Section 230 was never intended to—and does not—provide absolute immunity to website operators that actively create illegal online content. Had Congress sought to provide absolute immunity to any company with a website, it would have done so. But it did not.
For that reason, Congress should be very careful when tinkering with the core protections of Section 230. A limited number of exceptions for particularly difficult cases may be justified; indeed, Section 230 already has exceptions for violations of federal criminal law and intellectual property law. Sex trafficking is such a pervasive problem that I have no objection to adding another exception.
But what we should not do is restate the purpose of Section 230 or redefine what it means to be an information content provider. The courts have handled that task quite well since 1996, and there is no reason to think that they won’t continue to do so in the future. Needlessly changing the core of such a vital statute could fundamentally change the entire online landscape and chill online free speech.
Jeff Kosseff is an assistant professor of cybersecurity law at the United States Naval Academy. The views expressed in this article are only his and do not represent the Naval Academy, Department of Navy, or Department of Defense.
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