Lawmakers Urged to Reject State AGs' Bid To Ease Intermediary Shield in Decency Law

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By Amy E. Bivins  


Legal Patchwork Would Complicate Online Commerce  

Though the attorneys general only referenced trafficking offenses in their letter to lawmakers, their proposed amendment to the CDA would reach much more broadly.

For example, Steve DelBianco, NetChoice, noted that 46 states still criminalize defamation, and each have their own standard for the offense. If the CDA were amended to exclude state prosecutions from its protections, online intermediaries could be prosecuted for criminal defamation arising from user-generated content.

The New York legislature has also considered making it a crime to sell domain names to terrorist groups, Eric Goldman, professor at Santa Clara University School of Law, observed. Such a proposal would likely be preempted by the CDA today, Goldman said. But the proposed changes to the CDA could open up domain name marketplaces and registrars to prosecution under such a statute.

In 2007, Utah enacted legislation that prohibited businesses from using a competitor's trademark in keyword advertising. The state later modified the law. Though the statute was civil, a state could easily enact a law making it a misdemeanor to engage in such a practice, Goldman remarked.

“When states can create crimes governing internet companies, I get really freaked out because states have made some poor policy choices,” Goldman said.

Well-meaning proposals recently advanced by state attorneys general to amend the Communications Decency Act, 47 U.S.C. §230, would dismantle the environment that has enabled U.S.-based online companies to thrive, a group of trade associations, nongovernmental organizations, and academics cautioned July 30.

Companies like Facebook Inc., Google Inc., Twitter Inc., Etsy Inc., Pinterest, and craigslist Inc. face no liability for the content their users post--with the exception of potential federal criminal liability and intellectual property liability--due to protections for online intermediaries under the CDA.

The CDA, enacted in 1996, shields interactive computer services from claims that seek to treat them as the publisher or speaker of information provided by another information content provider.

“Section 230 is the most important internet law that no one has ever heard of.”
Steve DelBianco, NetChoice

A group of state attorneys general recently urged federal lawmakers to amend the statute to create an exception for state criminal prosecutions.

The proposed amendment is small--only two words. But if enacted, the amendment could significantly disrupt online commerce, the groups cautioned in a letter that they hope will stifle any action among federal lawmakers on the AGs' request.

Potential for Huge Ramifications

“The state AGs want to prosecute websites for third party content,” Eric Goldman, professor at Santa Clara University School of Law, told BNA.

The AGs said that the update is needed to combat crimes, such as sex trafficking, facilitated through online classified sites.

It is difficult to predict what the ramifications of such a change would be because, for the last 17 years, online intermediaries have lived in a world where they are not liable for user-generated content, Goldman said.

“Section 230 is the most important internet law that no one has ever heard of,” Steve DelBianco, NetChoice, Washington, D.C., told BNA. DelBianco signed onto the letter, along with Goldman and groups like the Center for Democracy and Technology, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Internet Infrastructure Coalition.

The CDA was enacted in response to libel suits against Prodigy and Compuserve over content posted online by third parties. At the time, lawmakers decided that intermediaries should not be strictly liable for the conduct of their users.

This is a subtle point that we take for granted today, but it is responsible for the United States leading the world in user-generated content and commerce, DelBianco remarked.

“The state AGs want to prosecute websites for third party content.”
Eric Goldman,
Santa Clara University School of Law

AGs Seek New Exception for State Criminal Liability

The CDA shields interactive computer services from claims that seek to treat them as the publisher or speaker of content provided by another information content provider, 47 U.S.C. §230. However, the protection excludes claims related to intellectual property and federal criminal prosecutions.

Federal courts have broadly interpreted the CDA, including in recent cases finding online classified sites and craigslist immune to any claims involving sex crimes by third parties using their networks.

“This must change,” the attorneys general wrote. To better combat such crimes, lawmakers should amend the CDA to state that nothing in the section shall be construed to impair the enforcement of federal or state criminal statutes, the AGs said.

“The proposal that the AGs made would be a fundamental change to Section 230.”
Emma Llanso,
Center for Democracy and Technology

“The proposal that the AGs made would be a fundamental change to Section 230,” Emma Llanso, Center for Democracy and Technology, told BNA. If enacted, the proposal would dramatically expand the scope of potential laws that state and local law enforcement could use to haul intermediaries into court for the content their users post, she predicted.

The introduction of an exemption for state criminal law would mean that online content hosts, internet service providers, and platforms would face a patchwork of potential criminal liability for user-generated content. This would be especially challenging for small startups with limited resources, Llanso observed.

For example, 46 states still consider defamation a misdemeanor, DelBianco observed. And each state has a different bar for what constitutes defamation. The varied standards and the potential for criminal prosecution would have a huge chilling effect on online intermediaries' willingness to funnel users' speech and commerce to the public, DelBianco said.

The proposed amendment is short, but very broad, Llanso said.

“This is not the type of narrowly tailored solution that we should be looking for to assist law enforcement to prosecute terrible crimes, while also protecting the internet as a platform for free expression,” Llanso remarked.

State Prosecutions Tumble Under CDA

At the federal level, there is a relatively sparse criminal code. But states have criminalized a wealth of activity that federal lawmakers have chosen not to criminalize, including activities that could generate liability for online intermediaries.

However, the CDA has frustrated state efforts to target online intermediaries through criminal penalties for their customers' activities.

In June, a federal district court in New Jersey enjoined the state from enforcing a new child sex trafficking statute. Online classified site LLC and The Internet Archive contended that the statute would make it impracticable for any business to host online user-generated content, Backpage LLC v. Hoffman, No. 2:13-CV-03952 (D. N.J. June 28, 2013).

The plaintiffs contended that the statute offends the Communications Decency Act, 47 U.S.C. §230, the First and Fourteenth Amendments, and the Commerce Clause. Judge Dennis M. Cavanaugh held that the plaintiffs satisfied the grounds for the issuance of a temporary restraining order.

The law was scheduled to go into effect July 1. The section of the statute at issue in this lawsuit would make it a crime to knowingly publish or indirectly cause the publication of content that contains an offer of any sexual contact in exchange for something of value in New Jersey if the content includes an image of a minor.

Arguments in the case are scheduled for Aug. 9.

The U.S. District Court for the Western District of Washington barred the enforcement of a similar law in 2012, v. McKenna, No. 12-954 (W.D. Wash. Sept. 25, 2012). was also cleared of any liability for users' crimes by a federal district court in Missouri, M.A. v. Village Voice Media Holdings LLC, No. 09-2082 (E.D. Mo. Aug. 15, 2011).

Craigslist has won similar cases, Dart v. craigslist Inc., No. 09-1385 (N.D. Ill. Oct. 20, 2009).

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