Law on the Books: Intent and Content
Section 230 of the Communication Decency Act of 1996, also commonly known as Title V of the Telecommunication Act of 1996, is often referred to as one of the most valuable tools for the protection of freedom of expression and a gateway for innovation of the internet. Section 230 of the CDA which states, “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,” was passed to protect internet service providers (ISP) from being liable for third-party content published on their service platforms. In order to further explain how and why Section 230 of the CDA came about, it is important to first introduce the Telecommunication Act 1996, describe how that act was amended by the CDA of 1996, and how eventually the CDA was amended to include Section 230 influenced by two court cases in the early 1990s.
History & Political Background
The Telecommunications Act of 1996 revived telecommunications law amending FDR’s Communications Act of 1934. The Telecommunications Act of 1996 was passed to allow anyone to enter any communications business and compete in any market against any other. In February of 1995, Senator James Exon introduced the Communications Decency Act (CDA), an attempt to “regulate obscenity and indecency online making it illegal to knowingly send and or show minors obscene or indecent content online.” The CDA was later attached as an amendment to the Telecommunications Act which at the time was a bill to be passed by Congress.
Around the same time, two court cases including Cubby Inc v CompuServe Inc and Stratton Oakmont Inc v Prodigy Services Co. paved the way to the creation of the 1996 CDA section 230. In 1991, Southern District of New York resolved a claim of liability in Cubby Inc v CompuServe Inc against CompuServe, an internet service provider which allegedly hosted “defamatory content” on one its service platform. The court ruled in favor of CompuServe stating that although it did host defamatory content on its service platform, “CompuServe was merely a distributor, rather than a publisher, of the content.” In 1995, a New York court took a different approach in Stratton Oakmont v. Prodigy Services, which held Prodigy, a web service provider, liable for its subscribers’ content given it attempted to moderate and delete “offensiveness and bad taste” from its platform and thus holding it as the publisher of its platform content.
In response to the Stratton case ruling, former U.S. House of Representatives Charles Christopher Cox and Ronald Lee Wyden introduced section 230 as an amendment to the CDA. Passing the House with a 420-4 vote, section 230 was to be included in the CDA to serves two purposes: “encourage the unfettered and unregulated development of free speech on the Internet” and “allow online services to implement their own standards for policing content and provide for child safety.” With the amendment of Section 230 to the CDA, the Telecommunications Act was signed into law on February 1996.
Proponents and Opponents of the Law
Proponents of section 230 include internet service providers and individuals who support internet free speech. Internet service providers are strong advocates of section 230 given they are freed from liability and can seek protection under the law. Internet free speech supporters also agree to have minimum internet regulation to prevent the hindering of free speech. Opponents of section 230, however, include the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). Once established as law, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) were outraged by the passing of the bill, a response mainly surrounding the CDA amendment of the Telecommunications Act and its anti-indecency provisions. With the ACLU filing a restraining order to the CDA’s anti-indecency provisions, and the EFF launching the Blue Ribbon campaign, the growing opponents led to Reno v. ACLU of 1997 to be brought before the U.S Supreme Court.
Implementor of the Law
The implementor of section 230 is a court judge whom can cite section 230 of the CDA in court rulings to protect internet service providers from third party content liability. In Cubby Inc v CompuServe, for example, Judge Peter K. Leisure implemented section 230 through his ruling that CompuServ was merely a distributor rather than a publisher of the third party content. In response to section 230’s opponents, Supreme Court Chief Justice William Rehnquist’s ruling on Reno v ACLU stated that the “anti-indecency provisions” of the 1996 CDA violated an individual’s First Amendment right to freedom of speech. While CDA anti-indecency provisions were struck down, section 230 of the CDA survived and remains law.
Procedure Implementation
It is important to recognize the role of law, not only within legal theory or “law on the books,” but it is imperative that one take a closer look into the application of law and how law takes form in action. The procedure taken by a judge of the court to determine internet service provider (ISP) and interactive computer service provider (ICSP) immunity and, therefore, enforce its protection under Section 230 are as follows: an ISP and ICSP must satisfy each of the following three criteria. First, an ISP and ICSP must be the provider of an “interactive computer service.” Second, the cause of action asserted by a plaintiff against the ISP or ICSP must treat the defendant as the “publisher” of the harmful information at issue. Lastly, the information must be “provided by another information content provider,” meaning the ISP or ICSP must not be the “information content provider” of the harmful information at issue. If the three criteria apply, the ISP or ICSP are not held liable and Section 230 of the CDA is upheld.
Court Decisions Affecting Implementation
Upon enacting Section 230 into law, there have been several court cases that have upheld the protection of Section 230. In a case decided by the Supreme Court of Florida in 2001 known as Doe v. America Online, courts ruled in favor of America Online, an internet service provider that allegedly held and published sexually explicit content of minors. However, the courts ruled America Online could not be held liable under Section 230 protections. In Dart v Craigslist, Inc. in 2009, a court upheld immunity for Craigslist, an internet service provider that offered “erotic services” in it sale section. In several cases brought against Backpage.com, courts upheld immunity for Backpage who clearly advertised underage escorts and facilitated sex trafficking online. It is clear that the implementation of the law originally intending for the advancement of the internet, was twisted in application through various court rulings.
Patterns of Enforcement
There have been no significant studies conducted on the selectivity or bias of section 230. However, one should not ignore the power of the internet players behind the protections of section 230. With the inclusion of section 230 to the CDA, the federal government has allowed today’s biggest companies to flourish. With internet service providers such as Google, Yelp, Twitter, Youtube, Craigslist and even those like Backpage.com, lobbyist from corporate bodies may be key to influencing, protecting, and enforcing section 230’s immunity. This brings to question the political bias in the enforcement of the law, and whether it enforcement it neutral towards internet service providers and individual online users alike. In the various cases, those which include Doe v. America Online, Doe. v. MySpace, Dart v. Craigslist, backpage.com v. Dart, courts always favored the internet service provider and dismissed the individual, ruling section 230 protected the ISP of any liability. While evidence showed ISPs facilitating the publication of sexually explicit content, with some cases involving minors, the individuals’ voice was silenced and often overpowered by the big players of the internet. As stated, there is no significant studies or evidence of the pattern of enforcement regarding section 230 of the CDA. However, through the many court case rulings involving section 230, is difficult to ignore how the law always, if not most often protects, internet service providers over the individual and or victim.
Evaluation of Effectiveness
Although Section 230 of the CDA is well known to be perhaps “the most influential kind of innovation that has allowed the Internet to thrive,” the effectiveness of the law is flawed. Section 230 has, since its enactment, protected sites such as Backpage.com, an internet service provider that allows its users to post ads on its platform. These ads including advertising sex trafficking online through ads under the title “escorts” and “adult services,” a protection long enforced by Section 230’s third-party liability immunity. As former U.S. House of Representative Charles Christopher Cox whom originally introduced Section 230 as an amendment to the CDA admitted, “the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad thing” online. In a recorded statement by Republican United States Senator Rob Portman addressing Congress on March 7, 2018, Portman blames Section 230 is at fault for “repeated victims of horrific acts committed in the shadows of the law.” Conducting an 18 month investigation with the Permanent Subcommittee on Investigations into Backpage.com, Portman learned that Backpage.com knowingly facilitated criminal sex trafficking of vulnerable women and children while increasing its profits through its victims. With multiple court cases brought by victims of sex trafficking against Backpage, those which include Backpage.com v. McKenna, Backpage.com LLC v Cooper, Backpage.com LLC v Hoffman et al., courts have consistently ruled that Backpage.com and other websites of its kind are protected by a federal law under Section 230 of the CDA. Certainly this was not the intent of congress to permit this protection but that is how the courts have interpreted it.
In so doing, it is hard to ignore the impact that Section 230 has in facilitating the increase of sex trafficking online. According to the National Center for Missing and Exploited Children (NCMEC), the organization reported a 846% sex trafficking increase from 2010 to 2015. The NCMEC directly correlated this increase to “the use of the Internet to sell children for sex (NOVA-HTI).” According to Thorn, 150,000 new escorts are posted online everyday with 70% of child sex trafficking survivors sold online. Now it is important to clarify that neither the internet nor Section 230’s protection of liability are the sole source to the correlation of the increase in sex trafficking, but it is important to recognize the facilitation that Section 230 offers in the protection to internet platforms that provide these services and hide behind the protection of immunity justifying its crimes thought the claims of free speech.
Ideas for Reform
It is clear that the original intent of Section 230 of the CDA was not intended to protect internet service providers from the criminal act of facilitating and advertising Sex Trafficking and human exploitation. Therefore, in efforts to restore justice it once overlooked, Section 230 of the CDA has been recently amended by the Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), two bills signed into law by President Donald Trump as of April 11th of this year. With the bill passing the House of Representative with a majority vote of 388-25 and 97-2 from the Senate, Section 230 has been signed into law to amend Section 230 of the CDA and prevent online crime protected under the law. Congress has limited the scope of Section 230 and has worked to correct and realign the law in action to the the law in theory. Apart from amending Section 230 of the CDA, federal and state law must be more active in maintaining control over platforms that fall outside of the amended section 230. This however must be done in a way that is tactful while not risking or violating one’s First Amendment rights. It is also crucial that federal and state government restore justice through financial support to programs and child safety against online crime.
References
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CUBBY, INC., a Corporation d/b/a SKUTTLEBUT, and ROBERT G. BLANCHARD, Plaintiffs, v. COMPUSERVE INC., d/b/a RUMORVILLE, and DON FITZPATRICK, individually, Defendants, 776 F. Supp. 135, 1991 U.S. Dist. LEXIS 15545, 19 Media L. Rep. 1525 (United States District Court for the Southern District of New YorkOctober 29, 1991, Filed ).
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Portman, Rob. “S.1693 – 115th Congress (2017-2018): Stop Enabling Sex Traffickers Act of 2017.” Congress.gov, 10 Jan. 2018.
Selyukh, Alina. “Section 230: A Key Legal Shield For Facebook, Google Is About To Change.” NPR, NPR, 21 Mar. 2018.
Sen RobPortman. “On Senate Floor, Portman Discusses the Growing Momentum in Congress for Enacting SESTA.” YouTube, YouTube, 7 Mar. 2018.
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STRATTON OAKMONT, INC. and DANIEL PORUSH, Plaintiff(s), v. PRODIGY
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