The Case for Reform of Section 230 of the Communications Decency Act

Before Congress adjourned for its annual August recess, over 20 U.S. Senators introduced S.1693 the Stop Enabling Sex Traffickers Act of 2017. This bill is the culmination of two years of intense investigation into the website Backpage and companies like it that are known to facilitate the sexual exploitation of children and adults.  

Led by Senators Portman (R-OH) and Blumenthal (D-CT) this bill would make three streamlined clarifications to the Communications Decency Act, to make anti-trafficking laws easier to apply to internet service providers. The legislation would allow victims of sex trafficking to seek justice against websites that knowingly facilitated human trafficking and child exploitation. It would eliminate special federal legal protections for websites who are assisting in the violation of federal sex trafficking laws, and it enables state law officials to take action against internet businesses violating federal sex trafficking laws.   

The focus of this bill is a seemingly innocuous provision of the Communications Decency Act (CDA)  of 1996. It prevents internet service providers from being treated as the “publisher” of information provided by an internet service user. “Publisher”, in this context, is a legal term used in cases involving slander and libel. Federal courts have taken this provision to provide near blanket immunity to anything internet service providers do—including aiding and abetting in the sale of children on the Internet.     

The CDA was passed by the Congress to limit sexually explicit material. It has been perverted by lower court decisions to actually protect the very thing it was designed to stop. Section 230 of the CDA was designed by Congress to encourage computer service providers in the 1990s to “police themselves” as regulators could not do it all. Instead of self-policing, Section 230 has now been used to create an atmosphere of lawlessness with websites actively enabling child sexual exploitation. In direct contradiction to its intent, courts have interpreted one provision of the Communications Decency Act to protect online businesses like Backpage, whose whole business model subverts public decency. Representative Bob Goodlatte was one of the primary authors of the Section 230 provision. He is now a co-sponsor to amend the law, to make clear to the Federal Courts that they are misinterpreting Congressional intent.  

The Tech industry opposes these amendments and cloaks itself in Free Speech, claiming Section 230 has made the modern internet possible. The world of technology is radically different today than it was 21 years ago. If nascent internet startups needed sweeping protection from litigation to thrive, that can’t possibly be argued now. Facebook is now a Fortune 100 Company, and rated #3 for fastest growing companies in America for 2017. When the CDA passed in 1996, there were 12 million Americans subscribed to services like Prodigy. Now billions of people are online every day engaging in commerce and activity that was unthinkable at the time the law passed.

Abusers and criminals get free speech, victims have to spend their lives trying to retreat from the internet. They get no speech at all. With the formation of “cyber mobs” generated by notorious hate groups who seek to harass and threaten people defending social justice, Section 230 is now actually impeding free speech.  

Online companies are using Section 230 as a shield to avoid laws that businesses with a physical presence must comply with. Online companies are using Section 230 to unfair commercial advantage. As it stands, if you publish a physical magazine and you fill it with child sexual abuse imagery (child porn) you will be subject to enormous civil and criminal liability. It does not make sense that we have one standard for the physical world, and another for the cyber one. The existence of libel and defamation laws for newspapers and magazines has not resulted in some great restriction on speech or limited innovation in publishing. All forms of publishing flourish in this country, expressing every viewpoint and every interest.

At this stage, the internet is not that fragile, nor is its future threatened. It seems more likely that the tech community’s defense is about something else than freedom and innovation. It seems much more likely that this is about bottom line decision making, and a disregard for human harm over immediate profits.  

Section 230 was expressly designed to protect Good Samaritans. We should insist the courts stop protecting the bad samaritans. This will not harm the Googles and Facebooks of the world. They already have robust policies to prevent abuse. But it will ensnare sites like Backpage, which were designed to aid and abet child sexual exploitation.