At this time of the year, most of us want to know what the Congress has done in the last year or so.
The answer, in this case, is a rather simple one.
The Congress has used quite a bit of its resources grappling with a single issue.
And that issue is, without a doubt, a heartbreakingly difficult one.
The issue is related to Section 230 of the Communications Decency Act.
This act prohibits victims from suing websites which engaged in sex-trafficking them.
The real unfortunate part of the whole discussion is that people have sidetracked the actual debate?
Because they misunderstand how the actual statute works.
One recent court case also played its part in interpreting the statute.
Let’s make something clear:
Section 230 is perhaps one of the most important, if not the most important, law in the entire history of the online world, or the internet.
Therefore, people can’t just go around and amend the statute in order to fix problems before they precisely understand what those problems are.
Section 230 has a particular twenty-six words.
These words shield all website from a lot of types of claims that basically arise from online user content.
The law clearly mentions that no user or provider of any interactive computer service shall be treated as the speaker or the publisher of any kind of information that is provided by another information content provider.
Let’s explain that a bit to further understand what does the law really mean.
In fact, let’s take an example.
Let’s say there is a newspaper that publishes a particularly defamatory article.
If something like this happens, the subject of the defamatory article can actually sue the newspaper publisher that published the article for defamation.
Here is the interesting bit though:
Under Section 230, if an online user posts some defamatory comments or remarks via platforms such as Twitter, the subject of the defamatory comments can’t really or successfully sue the platform, Twitter for the defamation.
With that said, it is true that the subject can sue the one who tweeted the defamatory content.
Jeffrey Kosseff is writing a neat little book about this Section 230.
He has titled the book The Twenty-Six Words That Created The Internet.
Some might think that the title of the book is rather an overstatement.
But it is not according to Jeffrey Kosseff.
If we don’t have Section 230, we would find it rather difficult to conceive of ideas such as consumer review sites, social media and all other types of user-focused platforms which work online.
At least, they wouldn’t exist in their current states and/or forms.
The thing readers need to understand is that companies can’t really afford costly lawsuits.
If companies don’t have protection against costly lawsuits for not successfully blocking all types of online harmful content, then they would have around two choices in total.
The first of those choices would involve the company hiring a good number of moderators.
Moderators who can screen every and all tweets, users pictures and posts.
As you can probably imagine, that would cost the company a lot of money.
And most technology companies can’t really afford such expensive and impractical measures.
The second of those choices, and perhaps the more likely one, is that companies could just go ahead and reduce if not stop the ability they given to the users for contributing their thoughts and ideas.
That would really change the internet.
The internet currently is a form of public square.
That’s exactly what it is today.
The internet is an electronic version of your traditional newspaper.
You could also think of the internet as a magazine.
In other words, it is a one-way interaction process.
The other thing is that most people should not consider it as a coincidence that the world’s most successful technology companies and internet companies hail from the United States of America.
Or at least are based in the United States.
Internet companies have broad immunities in the US.
But that isn’t always good.
In fact, there are some really legitimate criticisms of such a situation where internet companies have immunity.
For example, there are many victims of defamation along with victims of other harms who cannot really identify the entity or the person who published the defamatory content online.
Hence they have no avenues to recover from their defamation and other harms.
If we are talking about the past two decades, then it is true that Section 230 has caused some problems.
Problems which have basically prevented genuinely sympathetic victims from recovering by using online websites for the defamation they suffered because of them.
An outrage is Basically A Form Of Calls For Reform
As mentioned before, Section 230 prevents victims from suing websites which cause them harm.
One particular case that comes to mind, according to Jeffrey Kosseff, is that of plaintiffs who brought their cases to Jeffrey as victims of a sex-trafficking website called Backpage.com.
This is the site that, according to plaintiffs, advertised them.
And a district court relied on Section 230 immunity to grant Backpage’s motion to dismiss.
Moreover, we also know that the United States Court of Appeals for the First Circuit, just last year, affirmed the court’s decision.
It isn’t surprising to see that the official First Court decision did manage to spark an outrage.
We also heard calls for some much-needed reform.
In fact, some members of Congress have actually presented a number of legislative proposals.
They have also refined them.
This year alone, we have seen three hearings regarding the matter.
Jeffrey Kosseff also testified at one of these hearings.
During the hearings, he argued that the United States Congress should work harder to consider some exceptions.
Exceptions that should be explicit.
And basically, change Section 230 so that it allows state criminal prosecutions and lawsuits against all online platforms that knowingly engage in and run sex-trafficking advertisements.
Moreover, Section 230 should also make room for victims of sex-trafficking.
They should have the opportunity to recover damages from all the online sites that engage in sex-trafficking.
Right now some believe that section 230 is actually standing in the way.
If that is true, then the US Congress should manage to craft an exception.
An exception which would target all bad actors.
But that exception would have to do so without causing any chilling effect on all the online legal content which is completely unrelated to activities such as sex trafficking.
Perhaps this is a good time to mention that all members of the US Congress who have proposed legitimate legislation in order to address this problem have actually shown a great amount of compassion for all sex trafficking victims.
And other horrific crimes.
All the while, they also have shown good understanding that they need to sufficiently preserve all the core protections.
These are the core protections which Section 230 provides.
With that said, it is also true that the proposed bills differ if we are talking about how they structure the problem.
Or the solution.
In other words, bills that try to deal with sex trafficking and Section 230 differ in how they want the above-mentioned exception to work.
It is also heartening to observe staffers and members of the Senate and the House to work together so thoughtfully.
If they keep up that same spirit, they should have no problems in addressing issues such as sex trafficking.
And Section 230.
But according to professor Jeffrey Kosseff, there is one other troubling part that not many people are paying attention to.
Jeffrey admittedly has managed to study the overall benefits of laws such as Section 230.
But Jeffrey has a problem with the broader discussion that has surrounded this debate.
There is no doubt about the fact that Section 230 and sex trafficking has prompted a good amount of discussion.
In both technology and media policy community.
There are sections who have argued that people must take the opportunity to restate the purpose of Section 230.
Or restate the scope of Section 230 in its entirety.
And this includes how Section 230 affects issues which go beyond the current sex trafficking issue.
Right now some sections of the debate believe that internet companies have too much a broad immunity.
If that is the case then everybody should look at if this immunity is protecting websites which actively contribute to the publication and creation of content that is illegal?
According to Jeffrey Kosseff, that is absolutely not the case.
Websites don’t have that kind of an immunity via Section 230.
Jeffrey Kosseff believes that the First Circuit’s decision earlier this year represented an outlier.
And he thinks so for a couple of reasons.
The first of those reasons is that the First Circuit didn’t exactly follow standard operating procedures.
What does Jeffrey mean by that?
He means that the court issued its official opinion well before the release of the official Senate Investigations Subcommittee report.
That report had an interesting conclusion.
It basically mentioned that backpage.com knowingly concealed proof and evidence of criminality.
By systematically editing the website’s ads related to adult category.
Moreover, a Washington Post article, in July 2017, reported that one of the Backpage.com contractors actually aggressively created and solicited sex-related ads.
And this is despite the website’s, Backpage’s, repeated insistence to not do so.
At least that is what backpage still maintains.
The website has clearly said that it had little to no role in the creation of the content of ads that users post on its site.
According to Jeffrey, the First Circuit court did not have these facts in their records.
Hence they did not take this into account when announcing the official decision.
The second reason Jeffrey has pointed out is that the First Circuit didn’t actually address a very important argument.
Jeffrey wrote recently that this argument could have possibly led to a different conclusion on behalf of the court.
In fact, the court would have concluded that backpage did enough to not get immunity via Section 230.
Websites and/or any and all other online services don’t automatically get Section 230 immunity.
In order to receive Section 230 immunity, these sites have to demonstrate three very important elements.
These elements come from the twenty-six words which exist in Section 230.
If a website can’t show this to the court then it can’t avail the Section 230 immunity.
What are those three elements?
They are as follows,
- Websites and online services have to show that they represent an interactive computer service.
- They also have to show that the information at issue which was included in the lawsuit was provided some other information content provider.
- Thirdly, these websites have to show that the lawsuit treats the defendant in the case as the speaker and/or publisher of the information in question.
Did Backpage.com fulfill all these requirements?
Let’s have a look.
No one can doubt the fact that Backpage.com along with other websites indeed represent interactive computer services.
But the real challenges to Section 230, or its immunity, generally focus on both or just one of the other two prongs.
We should also mention here is that many plaintiffs have found some modicum of success in arguing with the court that the website, in this case, actually represented the information content provider.
And not some other third party.
As mentioned before, Section 230 comprehensively defines what it considers an information content provider.
It defines information content provider as any entity or person that is in part or wholly responsible for the development and/or creation of information that is provided through the internet.
Or any kind of other interactive computer services.
Keeping this into consideration many plaintiffs have argued backpage.com did contribute to user content.
Or illegal user content.
They did it, at least in part.
Hence, Backpage.com shouldn’t have the facility to claim Section 230 immunity.
Back in the year 2008, the United States Court of Appeals for the Ninth Circuit made an interesting decision.
The court basically ruled that a website working in the roommate-matching industry couldn’t avail Section 230 immunity.
And hence couldn’t shield itself from any claims which say that it violated the US housing discrimination laws.
How would a roommate-matching site do that?
Well, it could do that by requiring all its users to answers strange questions.
Strange questions that discriminate users by their gender.
And that also includes other less-common protected categories.
Jeffrey Kosseff also found an article published last year in Columbia Science and Technology Law Review.
This article talked about the fact how court increasingly agreed with the reasoning mentioned above.
Hence, courts that started to deny Section 230 immunity to such website.
These are websites which somehow contribute to user content that is illegal.
How does that relate to Backpage.com?
Well, according to Jeffrey, if we assume that The Washington Post and the Senate report presented the correct information then we could make a strong argument.
An argument where plaintiffs can show that Backpage.com indeed, at least in part, contributed to its user content.
According to Jeffrey’s logic, Backpage.com partly allow illegal advertisements related to sex trafficking.
And therefore backpage.com became an information content provider.
Whether the website liked this fact or not is another matter.
In fact, back in the year 2015, the Washington state Supreme Court officially ruled that Backpage.com did not have the privilege of claiming Section 230 immunity.
That was another suit but it was similar to the one we have discussed above.
Why did backpage.com not have a claim for section 230 immunity?
Because the website helped to publish and, before that, develop the advertisements.
Hence it contributed to the publication of illegal user content.
Section 230: Conclusion
Jeff Kosseff is very clear what the community should not restate Section 230 or its purpose.
The community should also refrain from redefining what information content provider means.
According to Jeff, US courts have rather done well in handling that task for the past couple of decades.
Hence Jeff doesn’t believe there is any reason for us to think that US courts would suddenly not continue in the same fashion in the future.
Changing the core understanding of Section 230 is needless.
It is a vital statute.
And lawmakers should exercise care with it.
Any change in Section 230, if not thought out, could change the fundamental nature of the entire internet.
And it could also chill rights such as online free speech.