Posted By: Peter Brown
On April 3, 2018, Congress submitted H.R. 1865 to President Trump for signature. The bill, titled Allow States and Victims to Fight Online Sex Trafficking Act of 2017, alters the application of 47 U.S.C. § 230 protecting internet platforms from liability for users’ posts. Nestled within the larger Communications Decency Act (CDA), § 230 represents Congress’ intent in 1996 to foster the internet’s promise to improve communication, commerce, and education.
Section 230 generally protects websites like Craigslist and Amazon.com from liability for what their users post on their platforms. As long as those sites are merely providing a soapbox for their users, the users may yell nearly anything without the site facing legal trouble. Yet, the recent whirlwind of horror, disappointment, and frustration whipping around Facebook, Cambridge Analytica, and most recently, sex-trafficking facilitator Backpage.com, has destabilized confidence in necessity of § 230’s protections. While H.R. 1865 targets websites like Backpage.com, the bill threatens to harm scrupulous websites and their users.
When § 230 was first enacted, it was designed to protect and promote the burgeoning potential of the internet. To that end, § 230(c) includes protections for providers and users of what the act calls interactive computer services. Those services are defined to protect websites like Facebook and Yelp from liability for what their users post. In addition, protected sites are not civilly liable for removing content they consider harassing, excessively violent, or obscene. Protected entities (interactive computer services) are contrasted with content creators and developers (information content providers) who receive no § 230(c) protections. Both websites and users alike can fall into the category of information content providers.
One of the earliest cases involving § 230 was Zeran v. America Online. In this case, Zeran sued AOL for defamation arising out of posts made by an unknown AOL user. The mystery user purported to advertise t-shirts with tasteless slogans about the Oklahoma City bombing and provided contact information in the form of Zeran’s phone number. After learning of the posts and the threatening calls Zeran received, AOL removed the messages and banned the poster. Shortly thereafter, Zeran sued AOL for defamation.
The case made it to the Fourth Circuit which ruled “[s]ection 230 . . . plainly immunizes computer service providers like AOL from liability for information that originates with third parties.” In part because of the internet’s budding promise in 1997, the court broadly interpreted § 230’s protections: “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.”
Since Zeran v. AOL, judges have generally upheld similarly broad protections for service providers. Courts have extended § 230’s shield to cover service platforms selecting which third-party content to publish. For example, the Ninth Circuit held in Carafano v. Metrosplash that interactive service providers retain full immunity for the content on their platform “regardless of the specific editing or selection process.” While the Ninth Circuit upheld protection for websites with content selection processes, it has also found websites fall outside of § 230’s protections when they require users to submit certain information.
One such case finding no § 230 protection for a website was Fair Housing Council of San Fernando Valley v. Roommates.com. The Council sued Roommates.com for violations of the Federal Fair Housing Act (FHA) and California law. Roommates.com was matching potential roommates based on a questionnaire the website had designed. While everyone recognized Roommates.com would otherwise qualify as a protected service provider, the Council argued the website was a content provider because it required users to complete and share the results of the website’s questionnaire. The Ninth Circuit agreed with the Council’s argument and found Roommates.com had developed unlawful content by requiring users to answer questions that violated the FHA. Therefore, Roomates.com was not protected by § 230 because its development of content contributed materially to illegal conduct violating the FHA.
As long as websites refrain from going as far as Roommates.com did, § 230 protects websites from liability for what their users post—even if those posts are delayed or altered. In light of the Carafano and Roomates.com cases, sites like Backpage have evaded liability by arguing their services are more like those in Carafano than in Roommates.com. Yet, heightened fears about foreign interference in elections, subversion on social media platforms, and internet sex-trafficking have created an environment favorable to reconsidering the protections codified in § 230. H.R. 1865, which President Trump has already endorsed, reflects Congressional intent on the topic of internet-facilitated sex-trafficking.
Recently, the FBI seized Backpage.com, a website alleged to have be a long-time facilitator of sex trafficking. Prior attempts to shut down Backpage’s promotion of sex trafficking were unsuccessful; blame for these failures has been placed primarily on § 230’s protections. Now, H.R. 1865 seeks to change that by imposing criminal penalties (including a prison term of up to 10 years) for persons owning, operating, or managing an interactive computer service to promote or facilitate prostitution. The bill would also subject interactive computer services to civil liability for acting in reckless disregard of their contributions to sex trafficking.
It is difficult to argue with H.R. 1865’s intentions; not many would advocate against stopping sex trafficking. At the same time, § 230(e)(1)’s original language clearly states that “nothing in this section shall be construed to impair the enforcement of section . . . 110 (relating to sexual exploitation of children).” That section clearly imposes serious criminal penalties on any person who knowingly publishes any notice seeking or offering child pornography.
In the summer of 2017, Backpage executives faced increasingly intense scrutiny over the issue of sex-related ads on their website. While Backpage previously used § 230 to shield itself from liability by arguing it was merely hosting others’ content, a Senate subcommittee investigation revealed much more damning activity. While Backpage invoked § 230’s protections, the investigation revealed the website had a regular practice of altering ads by deleting indicia of criminal activity, including child sex trafficking. Even worse, the committee discovered since at least 2006 Backpage had moderators editing the text of adult ads “to conceal the true nature of the underlying transaction.” Later, this activity was accomplished automatically with a filter that would remove certain words (such as “lolita”, “teenage”, “teen”, and “fresh”) before publishing the ads. Finally, the subcommittee found the site was using “helpful error” messages coaching users on how to submit ostensibly legal ads for what in fact was illegal.
Backpage’s moderation style is designed to facilitate posting illegal content that appears legal. This kind of action is not taken in good faith, as § 230 requires, but instead attempts to obtain § 230 protections despite editing and encouraging illegal content in bad faith. Backpage’s content selection process should qualify as knowingly publishing notices offering child pornography, especially considering § 230(e)(1) which states that the general protections for service providers do not impair enforcement of criminal sex trafficking laws. Given Backpage’s general success fighting off lawsuits, courts may have extended § 230(c) so far as to (improperly) protect service platforms from criminal liability.
In part to combat the extension of § 230(c)’s protections, H.R. 1865 contains a Congressional statement that § 230 “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution.” This bill together with the FBI’s recent seizing of Backpage indicate a concerted effort to stop Backpage for good.
However, despite the good intentions behind H.R. 1865, some have questioned the wisdom of H. R. 1865’s changes in relation to websites with no interest in or affiliation with sex trafficking. A big reason many platforms more scrupulous that Backpage are anxious about H.R. 1865 is its potential to subject sites to civil liability for knowingly assisting or facilitating advertising that violates sex trafficking laws. Backpage is an example of obvious egregious conduct but other sites like Craigslist and Reddit may host content that less clearly constitutes knowing facilitation.
Due to this ambiguity, H.R. 1865 could create two closely related problems that undermine § 230’s original purpose. First, service providers fearing prosecution under the “knowingly facilitating” terms of the bill might moderate none of their content. This would allow the provider to obtain the protections of § 230(c) at the same time as an unmoderated approach avoids knowledge or facilitation of illegal ads. Second and more likely, service providers might aggressively moderate anything remotely sex-related. With the broad application courts have given § 230’s protections, aggressive moderation would be unlikely to qualify as content creation or development, thus allowing them to be shielded from liability.
The consequences of over-moderation are something that, despite H.R. 1865’s intentions, sex workers fear rather than welcome. In the absence of H.R. 1865, the workers use online platforms to share information, screen out potential clients, and avoid harm. Passing H.R. 1865 and the consequential over-moderation—rather than protecting sex workers—could place them in greater jeopardy by forcing them into isolated areas on the street with higher risk clients.
While H.R. 1865 presents potential problems for service platforms, sex workers, and the Constitution, prospects for enactment look very favorable. The House approved H.R. 1865 with 388 yeas to 25 nays while the Senate approved 97-2. Taken together with the President’s endorsement of the bill, H.R. 1865 may be signed into law soon.
Whatever the effects on the internet, H.R. 1865 and the strong support it received in Congress may herald a significant shift in societal and legal expectations for how internet-based platforms ought to behave. Indeed, tech companies including Oracle, Facebook, and Google have expressed at least tepid support for the bill—indicating their acceptance of the currently heightened societal expectations for websites. Users are upset about privacy infringements, improper data use and the facilitation of divisiveness, vitriol, and information opacity. H.R. 1865 could be the harbinger of greater responsibilities for websites and the content they develop, create, and host.