Criminalizing Online Innovation: State Attorneys General Seek to Amend Section 230
August 2, 2013
Deceptively invoking the ‘save the children’ mantra yet again, State AG’s are reigniting the battle against online escort advertising websites, this time calling on Congress to amend one of the Internet’s few statutory guardians: Section 230 of the Communications Decency Act. Section 230, arguably the most important law to date in terms of protecting online speech and innovation, provides immunity to certain online service providers against liability for their users’ content or publications. If you’re getting a sense of déjà vu, it’s rightfully so. Going all the way back to 2009, State AG’s across the country have been waging the same war against online escort ads for years.
Directly on the heels of the Summer 2013 National Association of Attorneys’ General meeting, 47 State AG’s penned a letter to the Legislature, asking them to amend Section 230(e)(1) to include two simple words: “or State.” By amending this provision of the statute, all state criminal laws would be excepted from Section 230’s immunity, thus exposing service providers to a grand scope of potential legal liability never before seen throughout the history of the Internet. The proposed language would essentially afford State AG’s the latitude and discretion to prosecute online service providers for user-generated content that runs afoul of some state’s statute. Currently, criminal prosecution against online service providers in these circumstances is limited to federal level law enforcement, which tends to be a bit less reactionary when it comes to prosecuting online speech. One obvious reason for this is that federal prosecutors are appointed; not politically elected like local sheriffs. Citing to the alleged irony that the CDA was intended to protect children and is now used as a shield to foster child exploitation, the letter references recent headlines tying sex traffickers to web-based advertising platforms.
As with most policy debates involving the delicate balance between online freedom and safety, coming to a solution that will satisfy both sides is difficult, if not, nonexistent. Unfortunately for State AG’s, this particular issue simply doesn’t lend itself to compromise. The Internet was designed to be the foremost method in dissemination of free speech. Requiring online service providers to keep track of, comply with, and actively enforce every single state criminal law in the country against their users would effectively eliminate the same user-generated content sites that currently drive the virtual marketplace. Giving that kind of power to 50 State AG’s is a clear and present danger to free expression on the Internet.
The scope of a State AG’s jurisdiction is intentionally limited to state-specific issues. The Internet, by its very nature, has no jurisdictional boundaries. State AG’s should not have the authority to address state-specific Internet issues, because they do not exist. The notion of online service provider criminal liability brought on by state-level enforcement is fundamentally incongruent. If the theoretical arguments don’t convince you, then just look at the sheer logistics of the proposal: The likelihood of successful enforcement of over 50 criminal statutes without clogging up the judicial system is a near impossibility. Another aside warranting mention speaks directly to the incredulousness of the proposal in general. The fact that State AG’s consciously turned a blind eye to proven congressional intent and years of well-settled case law, and continued with this illogical request for legislative action, furthers the perception that shock-value is playing too big a part in this. Legal and tech news outlets have been abuzz about the letter since it went public. If this is the reaction resulting from a simple written request, one can only imagine the media exposure if this proposal actually gets some traction, and bills start getting introduced. Attorneys General are typically elected officials who are predictably working their way up the ladder of the state political machine. At the risk of sounding jaded, it is not beyond the willingness of some AG’s to parlay this cyberspace freedom battle into some attention-grabbing news headlines for themselves.
Further, who’s to say that imparting this power on State AG’s would even solve the problem at hand? History certainly tells us otherwise. All of the examples of sex trafficking reported in the letter involved Backpage.com, an online classifieds forum deemed by the AG’s to have intentionally constructed a business model around the sex trade. Notably absent from such allegations is the fact that Backpage.com did not become the premier venue for adult classifieds until Craigslist was forced to shut down similar services because of the threat of prosecution by a similar band of overzealous State AG’s. Like all good stories, there’s some kernel of truth behind the AG’s claims. Child exploitation via the Internet is a real issue and needs to be addressed by law enforcement. But the fact of the matter is that criminal activity is going to occur in the online world just as it does in the offline world. Permitting state-level criminal prosecutions may eliminate a particular online venue used in committing sex trafficking crimes, but it will not eradicate online sex trafficking crimes. If anything, it will force participants underground, making law enforcement efforts even more difficult. Backpage.com is not the only venue for escort advertising, and some foreign-based websites may be much less cooperative when it comes to subpoena responses, or assistance with missing children investigations. This misguided attempt to seize authority to prosecute U.S. escort advertising sites under state law only chills speech and innovation, not criminal activity. The online world is just like its brick and mortar counterpart – its marketplace operates under the principles of supply and demand. As long as there is a demand for sex trade participants, the marketplace will evolve to accommodate that. And innocent online service providers who are not complicit in any sexual exploitation issues will get swept up in the onslaught of criminal prosecution. Leaving a core issue of interstate commerce like the Internet in the hands of the federal agencies sounds like a reasonable, continued solution. If rampant child exploitation is, indeed, occurring on Backpage.com or elsewhere, there are plenty of federal statutes available to address the problem.
We’re routinely seeing the argument that Section 230 was intended to be a shield for online service providers, but these days, it’s more commonly being used as a sword instead. Common sense will tell you that almost any law can be viewed in such a manner – whether it’s the shield or the sword simply depends on where you sit. Section 230 is a legal cornerstone on which the Internet was developed and continues to thrive. Granting the State AG’s request to amend this statute to permit state level prosecution against online service providers would not only damage the virtual marketplace, but generate an unequivocal chilling effect on online speech. As legitimate a cause it may be, risking irreparable harm to innovation and the global economy is not the solution to abolishing the sex trade, or any other moral impairment that may be occurring online.