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Washington State Tries To Criminalize Service Providers For User Behavior; Internet Archive Sues

from the section-230,-have-you-read-it? dept

For years, we've talked about the importance of Section 230 in properly applying liability directed at the actual people who break laws, rather than the tools and services they use. Unfortunately, some people fail to make a distinction and love to blame service providers. And... once it gets into areas that make people react emotionally, things get ridiculous. For example, we've written a few times about the misguided attacks on Backpage.com, which only came about because of similar misguided attacks on Craigslist. At issue was that both sites had been used for prostitution and sex trafficking. But, rather than do the sensible thing and work with those platforms -- who both have programs to do exactly this -- to make it easier for law enforcement to find and prosecute those involved in such efforts, grandstanding politicians and activists blamed the service providers, driving the actual activities further underground. Of course, they have never had any real legal argument, and the lawsuits have fallen flat.

However, it appears that some politicians in Washington State decided to pass a state law (SB 6251) which targets service providers. It's one of those laws that it's easy for politicians to get behind without realizing what they're actually doing. They think they're "protecting the children" but they're actually making the problem significantly worse. That's because they're not setting up a better way to track down and stop those actually responsible, but rather are simply telling them to move further underground, where it will be even harder to stop them.

And, of course, in their zeal to "protect the children" the politicians who passed this bill wrote it so broadly that it can create massive problems for tons of legitimate online service providers. The Internet Archive, represented by the EFF, has filed to join a lawsuit (from Backpage) against the law, pointing out that it clearly violates Section 230 of the CDA, which providers the necessary safe harbors for service providers. The overreach of the Washington law is pretty astounding:
SB 6251 would effectively coerce, by threat of felony prosecution, online service providers to become censors of third-party users' content by threatening five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who “indirectly” “causes” the publication, dissemination, or display of content that contains an explicit or even “implicit” offer of any sexual contact for “something of value” in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., “indirectly” “causes”), the law could be applied not only to online classified ad services like Backpage.com but also to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more. A law that takes such an overbroad approach is of serious concern to the Internet Archive, which aims to serve as a library for the Internet, and accordingly, houses more than 150 billion web pages archived since 1996.

The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person(s) depicted in the post (notably, even if that ID does not contain a photograph). This means that service providers – no matter where headquartered or operated – may be asked to review each and every piece of third-party content accessible through their services to determine whether the content is an “implicit” ad for a commercial sex act in Washington, whether it includes a depiction of a person, and, if so, obtain and maintain a record of the person’s ID. These obligations would severely impede the practice of hosting third-party content online.
I'm sure the folks behind this law had the best of intentions. Sex trafficking of underage persons is a very real and horrific problem (even if the numbers bandied about are massively exaggerated). But the real solution is to go after the actual perpetrators, and that means working with service providers to help track them down -- not criminalizing the service providers in a way that kills off lots of legitimate activity as well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That Anonymous Coward (profile), Jun 18th, 2012 @ 7:25am

    This is why laws need to be based on facts and not hype.
    The public really needs to stop accepting what the talking heads tell them and punish law makers who try to pass stupid laws like this.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Jun 18th, 2012 @ 7:48am

    'working with service providers to help track them down -- not criminalizing the service providers in a way that kills off lots of legitimate activity as well'

    which, in turn, will actually hamper the discovery of those behind the acts instead of aiding finding them. like so many things lavished with 'good intentions', they aren't thought through properly or the consequences are ignored with perhaps the opinion that any wrong can be righted later (always too late to do, so basically never happens/cant be done!) usual case of politicians trying to do something with a technology they dont understand

     

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  3.  
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    Dreddsnik, Jun 18th, 2012 @ 7:52am

    " I'm sure the folks behind this law had the best of intentions. "

    I am equally sure that the intent behind this law has NOTHING to do with porn or human trafficking. If the SOPAs',
    ACTAs' or other bad laws that are openly modeled to turn the internet into nothing but an online mall fail to pass there has to be a plan B. This is plan B.

    The folks behind this law know precisely what they are doing.

     

    reply to this | link to this | view in thread ]

  4.  
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    Anonymous Coward, Jun 18th, 2012 @ 8:01am

    I'm sure the folks behind this law had the best of intentions,

    Bullshit.

    They just want to blame somebody else and sweep the problem under the rug. And that is what they are doing.

    Folklore has is that there once might have been honorable politicians, but that was hundreds of years ago. There is NO such thing as a principled politician in America these days and that includes those that have held, hold and will hold the "highest office in the land".

    One need look no farther than the liar-in-chief - the miserable so and so is trying to blame Europe's economic problems for the terrible US economy while the real cause (Wall Street's innumerable crimes) go uninvestigated, unprosecuted and unpunished and he even runs defense for his Wall Street owners.

    The American political system is utterly corrupt at all levels and the liars, thieves and criminals are "in charge" at all levels. Today's American politicians are loathsome, gutless, self-aggrandizing, self-enriching, finger-pointing, useless sumbags.

     

    reply to this | link to this | view in thread ]

  5.  
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    The eejit (profile), Jun 18th, 2012 @ 8:04am

    Re:

    So...who to kill first, the lawyers or the talking heads?

     

    reply to this | link to this | view in thread ]

  6.  
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    Anonymou Anonymous Coward, Jun 18th, 2012 @ 8:07am

    Re:

    "punish law makers who try to pass stupid laws like this."

    And therein lies the rub. How does this happen? Relying on the election process that is corrupted with money and courts claiming corporations are people has not, and will not work.

    There needs to be something more on the order of a vote of no confidence that then leads to removal from office. I am not sure of the best mechanisms for this, but the incompetents and their laws need to go.

     

    reply to this | link to this | view in thread ]

  7.  
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    Richard (profile), Jun 18th, 2012 @ 8:12am

    Re:

    There are a few principled politicians - but it usually doesn't take long for them to get marginalized or worse...

     

    reply to this | link to this | view in thread ]

  8.  
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    The eejit (profile), Jun 18th, 2012 @ 8:45am

    Re: Re:

    Sooo...a national recall process?

     

    reply to this | link to this | view in thread ]

  9.  
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    Anonymous Coward, Jun 18th, 2012 @ 9:19am

    If they went after the actual perpetrators, they wouldn't be able to use them as an excuse to pass "think of the children!" laws. Why solve such a helpful problem?

     

    reply to this | link to this | view in thread ]

  10.  
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    MrWilson, Jun 18th, 2012 @ 9:42am

    Re: Re: Re:

    Or maybe we fire the politicians and vote on everything ourselves, after we figure out how to do so without fraud or bogging down the system too much*.

    *I know, that's asking a lot.

     

    reply to this | link to this | view in thread ]

  11.  
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    Anonymous Coward, Jun 18th, 2012 @ 9:44am

    Re:

    I miss Jimmy Stewart

     

    reply to this | link to this | view in thread ]

  12.  
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    Spaceman Spiff (profile), Jun 18th, 2012 @ 11:09am

    Internet for Dummies

    If the "The Internet For Dummies" book were to be rewritten for politicians they would have to rename it "The Internet For Clueless Idiots"... It would also be all of 1 page in length containing just 1 sentence: "The Internet is a series of tubes..." - Senator Ted Stevens, R-Alaska

     

    reply to this | link to this | view in thread ]

  13.  
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    Chargone (profile), Jun 18th, 2012 @ 11:18am

    Re: Re: Re: Re:

    yes...

    fire...

    *shifty eyes, carefully nudges cannon out of sight*

     

    reply to this | link to this | view in thread ]

  14.  
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    Chargone (profile), Jun 18th, 2012 @ 11:20am

    Re: Internet for Dummies

    .... i suspect that would cause more confusion than it would eliminate.

     

    reply to this | link to this | view in thread ]

  15.  
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    Jalek (profile), Jun 18th, 2012 @ 11:27am

    The obvious solution is an image scraper run over hundreds of porn sites, with the images directed to the state legislators, asking for age validation of each image.

    Problem solved.

     

    reply to this | link to this | view in thread ]

  16.  
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    btr1701 (profile), Jun 18th, 2012 @ 11:40am

    Jurisdiction

    > no matter where headquartered or operated

    Why is it that our various legislative bodies constantly perpetuate this idea that they have jurisdiction over the entire world?

    Unless I'm in Washington, or my business has substantial physical ties in the state (beyond a web site merely being on the internet), then I don't give a rat's ass what laws Washington State passes. They don't have jurisdiction over me.

     

    reply to this | link to this | view in thread ]

  17.  
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    That Anonymous Coward (profile), Jun 18th, 2012 @ 8:02pm

    Re: Re:

    I dunno, if you can get the people of their district, community, whatever to actually understand how freaking bad this law is and the fact it will harm more children than it will help you have completed step 1.
    Step 2 is getting all of them to promise to call the lawmaker.
    Step 3 is reminding them they can FB that lawmaker.
    When a large group of the people who put you in the job point out this is flawed, and we'll vote against you or try to recall you or point out you supported a law that HELPED molesters get access to children they tend to notice.

     

    reply to this | link to this | view in thread ]

  18.  
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    Chicken Sock Puppet, Jun 19th, 2012 @ 2:18am

    Re: Re:

    "Relying on the election process that is corrupted with money and courts claiming corporations are people has not, and will not work."

    Obviously a slam against Republicans but I would like to remind you that the vast majority of sponsors of this bill were Democrats.

     

    reply to this | link to this | view in thread ]

  19.  
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    Chicken Sock Puppet, Jun 19th, 2012 @ 2:22am

    Now look who is all riled up...

    Uh-oh, looks like they are going after Internet and content providers for the actions of a few. The result is that is punishes everyone else who DIDN'T break the law. This apparently has pissed off a few people who find this law unjust because it harms them for an offense they didn't create.

    You just keep that thought in mind the next time some progressive starts talking about banning guns because ONE moron uses them illegally.

     

    reply to this | link to this | view in thread ]

  20.  
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    Niall (profile), Jun 21st, 2012 @ 7:26am

    Re: Now look who is all riled up...

    Oh yes, because potentially stopping free speech is TOTALLY like someone going out and shooting a congresswoman.

     

    reply to this | link to this | view in thread ]


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