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

Legal Issues

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.

Filed Under: cda, censorship, liability, safe harbors, section 230, washington state
Companies: backpage.com, craigslist, eff, internet archive, village voice