Lawmakers Ponder Website Liability Bill Changes

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Alexis Kramer

Senate lawmakers are mulling changes to a website liability bill to assuage tech company concerns that the measure would create liability risks for companies making good faith efforts to rid their sites of sex-trafficking content.

The bill, S. 1693, by Sen. Rob Portman (R-Ohio), would hold websites liable for knowingly publishing content designed to facilitate sex trafficking. It would amend Section 230 of the Communications Decency Act, a 21-year-old statute that shields websites from liability for the content created by others.

Lawmakers at a Sept. 19 Senate Commerce, Science, and Transportation Committee hearing questioned how they would need to change the bill to avoid harming internet platforms. No lawmakers voiced opposition to the measure, a sign that it may be difficult for tech company opponents to bottle up the legislation.

Sen. Richard Blumenthal (D-Conn.) said the bill, which he helped draft, was narrowly and “carefully crafted.” But he added that he and other lawmakers are working to make the provisions “even clearer and more precise to avoid unintended consequences.” He said he welcomed suggestions from the tech industry.

Committee Chairman John Thune (R-S.D.) asked the Internet Association’s general counsel Abigail Slater how lawmakers could amend the bill to gain the group’s support. The Internet Association, a tech trade group representing Alphabet Inc.'s Google, Facebook Inc., and other companies, opposes the bill.

Slater didn’t offer precise language, but said she would support changing the law to allow victims to bring civil claims under a provision of a federal sex trafficking law, 18 U.S.C. § 1595.

‘Knowing’ Standard Debated

Committee members and witnesses had varying views over whether the bill’s “knowing” standard, as written, would deter websites from policing their own content.

Google and other tech companies have argued that the standard could cause websites to reduce their efforts to screen for illegal content for fear of being held liable for it.

But that standard would be a “high bar to meet,” Portman said at the hearing.

“Websites would have to be proven to knowingly facilitate, support, or assist in online sex trafficking to be liable,” Portman said. “Because the standard is so high, our bill protects good tech actors and targets rogue online traffickers like Backpage.”

California Attorney General Xavier Becerra agreed that the bill’s standard would be difficult to meet. Prosecutors would have to prove beyond a reasonable doubt that a website knew it was publishing content designed to further sex trafficking, Becerra said.

“On the criminal prosecution side, we make it very difficult for prosecutors to go after people,” Becerra said. “I have to have strong evidence to prove beyond a reasonable doubt.”

Other witnesses said lawmakers needed to clarify what standard would apply under the bill.

Websites would be held liable under the bill for “knowing conduct” that supports or facilitates sex trafficking. Slater said in written testimony that “knowing conduct” isn’t defined and that courts could interpret it to include companies’ general knowledge that users communicate on their platforms.

Eric Goldman, a law professor at Santa Clara University, said that the language needs to explicitly define the standard to avoid differing interpretations. Congress could clarify that the term “knowing” refers to a legal violation, not to the company’s conduct, he said.

Goldman also said that the bill’s civil provision wouldn’t be subject to the same burden of proof as the “beyond a reasonable doubt.” The civil standard would be lower and invite more lawsuits, he said.

Becerra told reporters after the hearing that in civil cases, the plaintiff’s attorney would still have to go before a jury and meet the standard set by Congress.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Tech & Telecom on Bloomberg Law