Social Media in Crosshairs as Lawmakers Eye Online Immunity

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By Alexis Kramer

Social media is thriving under the cover of a 21-year-old federal law that says websites aren’t liable for the content their users post online. Congress appears poised to scale back that exception in 2018—but it’s unclear by how much.

Lawmakers are weighing changes that may disrupt social media’s business model, under which the platforms are lucrative conduits for digital communications and aren’t responsible for the keystrokes of their global legions of users.

Pending House and Senate bills ( H.R. 1865, S. 1693) would amend current law—Section 230 of the Communications Decency Act—to hold websites liable for knowingly publishing content that facilitates sex trafficking. The legislation likely will change the way websites police content, attorneys and technology trade groups told Bloomberg Law.

“The chilling effect could be substantial,” Santa Clara University law professor Eric Goldman said.

The measures would affect not just major social networks like Facebook Inc. and Twitter Inc., but any platform that allows users to post their own content—from vacation rental websites to message boards to crowdfunding sites.Big and small tech companies alike are wrestling with lawmakers over revisions to the legislation and are already considering changes to their content-monitoring practices. The bills as drafted would only target sex-trafficking content. But tech companies are worried that lawmakers may decide to expand the legislation or write new measures to hold online publishers responsible for terrorism-related content or foreign political ads. “Once that door is open, it’s a lot easier to push forward than get it unlocked in the first place,” Kevin M. Goldberg, a First Amendment and internet law attorney and member at Fletcher Heald & Hildreth PLC in Virginia, said.

Big Tech’s Big Lobbying Effort

Alphabet Inc.'s Google, Facebook, Twitter, Apple Inc., and Dropbox Inc. are among the tech companies lobbying to influence lawmakers on the issue, Bloomberg Government data show. Google spent $4.17 million and Facebook spent $2.85 million in the third quarter of 2017 alone on those efforts, according to the data.

Rep. Ann Wagner (R-Mo.) and Sen. Rob Portman (R-Ohio) introduced the bills following a two-year Senate probe, led by Portman, into classified ad site Backpage.com LLC’s alleged facilitation of sex trafficking. Courts have repeatedly held that Section 230 protects Backpage from claims it enables sex traffickers to advertise their victims online.

Tech companies opposed the effort. They argued that the bills, despite their aim, would create liability risks for companies making good faith efforts to rid their sites of sex-trafficking content.Portman made some changes to his bill in November to assuage critics’ concerns that it would result in companies doing less to monitor content so they could believably claim they don’t know what’s on their sites. Language that would bar “knowing conduct that assists, supports, or facilitates” sex trafficking was changed to a prohibition on “knowingly assisting, supporting, or facilitating” such crime. The Internet Association, a trade group whose members include Facebook and Google, reversed course and backed the bill with those changes.

The fate of the legislation remains unclear. The House bill has yet to advance, and other tech trade groups, including TechFreedom and Engine, say the Senate bill is still problematic. Sen. Ron Wyden (D-Ore.), an original author of the Section 230 language, has opposed the Senate version, which was unanimously approved Nov. 8 by the Senate Commerce, Science and Transportation Committee. He vowed to block the bill from reaching a floor vote because, according to Wyden, it would place a heavy compliance burden on smaller companies and startups and harm innovation.

Business Model Overhaul?

Portman’s changes appeased some critics. But the House bill remains broad, holding websites liable for “knowing or reckless conduct” that furthers sex trafficking. Either way, critics say the “knowing” or “knowingly” standards are vague, overly broad, and could subject companies to liability for merely monitoring their sites for illegal content and failing to take it all down.

Some internet services may not be able to keep up with the mandated level of accuracy in detecting and removing certain content, Sonali Maitra, a technology attorney at Durie Tangri in San Francisco, said. Those companies, she said, would face a difficult choice: vastly limit user content, or drastically reduce monitor-and-remove efforts to avoid being accused of knowing about sex-trafficking content.

“It would put smaller companies in a very precarious situation,” Rachel Wolbers, policy director at Engine, an advocacy group for tech startups, said. Startups and smaller internet publishers that lack resources to boost policing efforts by investing in automated filtering tools or hiring employees to read through every post may simply stop moderating content, she said.

Many companies will be forced to assess the minimum amount of policing needed to avoid potential liability risks, Goldman said. “There would be a substantial transition period after the law is passed where sites figure out what they can and can’t do,” he said.

Supporters say the bills are narrowly tailored and wouldn’t put a heavy burden on social media.

The legislation only targets bad actors, according to Christine Raino, senior director of public policy at Shared Hope International, an anti-sex trafficking advocacy group. “It shouldn’t impact companies’ good faith efforts to look for criminal activity on their platforms,” she said.

Portman spokesman Kevin Smith told Bloomberg Law that the bill “protects good actors and only targets rogue online businesses like Backpage that actively facilitate sex trafficking.” Wagner told Bloomberg Law that she is working with the Department of Justice and House Judiciary Committee to make sure her bill “has the ability to really put criminals behind bars and to take these websites down.”

Down the Slippery Slope

The bills would enable sex-trafficking victims to obtain relief in court from publishers for harms they suffered as a result of content found on their sites. But despite its benefits, concerns persist that any change to Section 230 may create a slippery slope toward more alterations.

Lawmakers, for example, could propose changes to Section 230 to target terrorist content or foreign political ads, Goldberg said. That could raise particular concerns for social media companies that have not only benefited from such immunity in the past but are now at the heart of a political firestorm over how Russia may have used their platforms to influence the 2016 U.S. presidential election.

Google, Facebook, and Twitter have all escaped liability under the law for claims that they allowed the Islamic State group to use their sites to spread propaganda and recruit fighters. In 2017, Google won dismissal of one, and Facebook won dismissal of two such complaints under Section 230. Bloomberg Law data show nine pending cases that allege at least one of the three platforms provided material support to terrorism.

State attorneys general are pushing for wider changes to Section 230 that would allow them to prosecute website operators for alleged crimes under state law. Section 230, while generally immunizing publishers for content on their sites, says they can be held liable for federal criminal charges. The two bills would broaden that exemption and include state criminal claims, but only if they relate to sex trafficking. Fifty state attorneys general asked Senate and House lawmakers in August for a broader exemption for all state criminal laws.

Exceptions in the Wings

Debate over the bills’ language will continue. Attorneys and tech trade groups want to see further changes to the Senate bill that would ease monitoring efforts for publishers. TechFreedom and Engine have proposed a notice-and-takedown system whereby websites could avoid liability by, upon receiving notice of an alleged sex-trafficking post, reporting it to law enforcement and cooperating with removal orders. The groups want lawmakers to specify when websites have a duty to take down content and further clarify the knowledge standard.

Regardless of the final form, legislation narrowing Section 230 would drive social media, sharing economy companies, and other online content publishers to change their policies and practices—and could open the door to further changes in a law that’s served as a foundation for the internet’s freewheeling content culture for more than two decades.

“If this law goes through, there’s a long line of other victims who believe there should be an exception under Section 230,” Goldman said.

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

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

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