Section 230 and Criminal Law; DOJ 230 Workshop Review, Part II

from the don't-break-the-internet dept

In Part I of this series on the Department of Justice’s February 19 workshop, Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda), we covered why Section 230 is important, how it works, and how panelists proposed to amend it.

Here, Part II covers how Section 230 intersects with criminal law, especially around child sexual abuse material (CSAM). Part III will ask what’s really driving DOJ, and explore how to get tough on CSAM without amending Section 230 or banning encryption.

Section 230 Has Never Stopped Enforcement of Most Criminal Laws

The second panel in particular focused on harms that either already are covered by federal criminal law (like CSAM) or that arguably should be (like revenge porn). So it’s worth reiterating two things up front:

  • Section 230’s protections for websites have always excluded federal criminal law

  • Section 230 has never stopped state or local prosecutors from enforcing state criminal laws against the users responsible for harmful conduct online.

Plaintiff’s lawyer Carrie Goldberg repeatedly mentioned Herrick v. Grindr. Her client Matthew Herrick sued Grindr for failing to stop his ex-boyfriend from repeatedly creating fake Grindr profiles of Herrick, each claiming he had a rape fantasy, and using these profiles to send over 1200 men to attempt to rape him. Both state criminal law and federal harassment law already cover such conduct. In fact, contrary to Goldberg’s claims that law enforcement did nothing to help her client, Herrick’s ex was arrested in 2017 and charged with stalking, criminal impersonation, making a false police report, and disobeying a court order.

On the same panel, Yiota Souras, Senior Vice President and General Counsel, National Center for Missing and Exploited Children, acknowledged that Section 230 didn’t stop federal prosecutors from charging executives of Backpage.com. Indeed, the former CEO plead guilty literally one day after President Trump signed FOSTA-SESTA — the first legislation to amend Section 230 since the law was enacted in 1996. Souras claimed that the only reason other sites haven't rushed to fill the gap left by Backpage (in hosting ads for child sex trafficking) was the the deterrence effect of the new law.

Correction Notice: This post originally misattributed the above to Prof. Mary Anne Franks, rather than Yiota Souras.

But since FOSTA-SESTA was enacted nearly two years ago, not a single prosecution has been brought under the new law. By contrast, the DOJ managed to actually shut down Backpage.com and its former CEO, Carl Ferrer. Ferrer is now awaiting sentencing and could face up to five years in prison plus a $250,000 fine. (You can read his plea bargain if you’re interested.) Meanwhile, the two other arrested Backpage executives are continuing to fight their legal case, in which there is increasing evidence that the Justice Department is trying to railroad them into a guilty plea by misrepresenting their efforts to help stop trafficking as evidence they were helping to promote it. It’s a messy case, but with one criminal plea under pre-existing law and zero prosecutions for the new law, it’s hard to argue that the new law accounts for all of the deterrence value Franks ascribes to it.

The Role of States and State Criminal Law

Nebraska Attorney General Doug Peterson said state AGs wanted only one tiny tweak to Section 230: adding state criminal law to the list of exceptions to Section 230’s protections. (The National Association of Attorneys General has been pushing this idea for nearly a decade). It may sound moderate: after all, since 230 doesn’t bar enforcement of federal criminal law, why stop the application of state criminal law? But, as Prof. Goldman noted, there’s a world of difference between the two.

The AGs’ proposal would create four distinct problems:

  1. Section 230 has ensured that we have a consistent national approach to using criminal law to police how websites and Internet services operate. But if website operators could be charged under any state or local law, you’d have a crazy-quilt of inconsistent state laws. Every state and locality in America could regulate the entire Internet.

  2. Most scholars agree that federal criminal law has become far too broad, but compared to any one state’s body of criminal law, it’s narrow and tailored. State criminal law includes an almost endless array of offenses, from panhandling to disturbing the peace, etc. Few people would argue that such laws should be applied on the Internet — yet, if Section 230 were expanded to allow prosecution of all state laws, creative prosecutors could charge just about any website with just about anything.

  3. In particular, half the states in the country still criminalize defamation, so opening the door to the enforcement of state criminal law means making websites liable for defamation committed by users — the thing Section 230 was most specifically intended to prevent. Yes, criminal cases involve a higher burden of proof but also stiffer penalties. And if websites face criminal penalties whenever users can complain about other users’ speech, the chilling effects would be enormous. Any potentially sensitive or objectionable speech would be censored before anyone even complains. Politicians would be in a particularly privileged position, able to silence their critics simply by threatening to have criminal charges filed. Think Trump on steroids — for every politician in America (and anyone else who could get prosecutors to file a criminal complaint, or at least threaten to do so).

  4. These laws weren’t written for the Internet and don’t reflect the difficult balancing that would have to be done to answer the critical questions: exactly when would a website be responsible for each of the potentially billions of pieces of content it hosts? What kind of knowledge is required? The example of Italian prosecutors charging a Google executive with criminal cyberbullying simply because Google was too slow to take down a video of students taunting an autistic classmate illustrates just how high the stakes could be (never mind that the charges were ultimately overturned by the Italian Supreme Court).

There’s no need to open this can of worms. If the problem is that we don’t have a law for something like revenge porn, we should have that debate — but in Congress, not in every state legislature or town hall. A new federal criminal law could be enforced without amending Section 230.

But if the problem is that federal law enforcement lacks the resources to enforce existing criminal law — again, this is absolutely true for CSAM — the obvious answer would be to enlist state prosecutors in the fight. In fact, the U.S. Attorney General can already designate state prosecutors as “special attorneys” under 18 U.S.C. § 543. Section 230 wouldn’t stop them from prosecuting websites because Section 230(e)(1) preserves the enforceability of federal criminal law regardless of who’s doing the enforcing. The fact that you’ve almost certainly never heard of this provision ought to make clear that this has never really been about getting state prosecutors more engaged — and make you question the state AG’s motives. (The same goes for formalizing this process by amending specific federal criminal laws to allow state prosecutors to enforce them.)

We proposed using Section 543 in the SESTA-FOSTA debate back in 2017 but the idea was dismissed out of hand. As a practical matter, it would require state prosecutors to operate in federal court — and thus, in many cases, to learn new practice rules. But that can’t possibly be what’s stopping them from getting involved in CSAM cases.

In Part III, we’ll ask what’s really driving DOJ here. Hint: it’s not really about “protecting the children.”

Filed Under: bill barr, cda, content moderation, csam, defamation, internet, law, publishing, section 230


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  • identicon
    Anonymous Coward, 21 Feb 2020 @ 1:51pm

    They are trying to do to the internet what they did to Iraq...

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

  • identicon
    Anonymous Coward, 21 Feb 2020 @ 3:14pm

    Criminal Law

    Once-upon-a-time in classic Anglo-American law .... becoming a 'criminal' required a person to physically act with deliberate intent to violate the law, with awareness of the illegal nature of that action.

    Lawful conviction of a crime required fair judicial proof of both'Actus Reus' {... a bad act} AND 'Mens Rea' {... a guilty mind}.

    But in today's American 'legal system' -- anyone can become a convicted & severely punished "criminal" -- without any actual knowledge of the "law's requirements" and with no wrongful intent at all.

    Over 300,000 federal criminal offenses are on the books today -- how many of those are you even slightly aware of ?

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

  • identicon
    Anonymous Coward, 23 Feb 2020 @ 9:48am

    I have no doubt at all about the needed protections given by section 230 but why is it that, more than from any other direction, the entertainment industries seem to want it gone? I appreciate that nothing done that benefits or protects others is seen by these particular industries as being detrimental to them. however, the harm done to everyone and everything because of this attitude is totally ignored. Even courts seem to be allowing more cases to progress, not because the law isnt understood but because certain judges dont like it themselves or are 'encouraged' to not like it. It dtill all seems to boil down to the same things. Yhe entertainment industries want complete control of the internet and judt about evety government, whether of a supposed democracy or not want to be able to prosecute who the hell they like, whether any law(s) was broken or not, it just wants to say 'it dont like it', whatever 'it' is!

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

    • icon
      Stephen T. Stone (profile), 23 Feb 2020 @ 9:53am

      why is it that, more than from any other direction, the entertainment industries seem to want it gone?

      Simple: Without 230, the Internet moves away from being a communications network and towards being a broadcasting network. That plays into the hands of the entertainment industries, which can crush small content outlets and take back the “airwaves” of the Internets. Netflix, Hulu, etc. do not want to compete with YouTube — they want to snuff that service out. Getting rid of 230, and thus making YouTube’s owners legally liable for all content posted to YouTube, would accomplish that goal.

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

      • identicon
        Anonymous Coward, 23 Feb 2020 @ 4:16pm

        Re:

        Making YouTube's owners legally liable for all content posted to YouTube, I'd argue, is not even the nastiest outcome desired by the entertainment industries. The entertainment industries don't just want YouTube liable - they want YouTube found guilty on their say so, based on their non-existent standards for evidence.

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

        • identicon
          Anonymous Coward, 24 Feb 2020 @ 5:32am

          Re: Re:

          I thought they wanted youtube to be ruled illegal.

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

          • icon
            Scary Devil Monastery (profile), 24 Feb 2020 @ 5:40am

            Re: Re: Re:

            "I thought they wanted youtube to be ruled illegal."

            Oh, if intermediary liability becomes a thing, youtube may, in theory, still be legal.
            But in practice it will be impossible to run legally.

            It's like claiming that a law which says you may not lift your feet when walking doesn't, strictly speaking, make walking illegal.

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

        • identicon
          Anonymous Coward, 24 Feb 2020 @ 8:25am

          Re: Re:

          They've already got that; it's called the DMCA.

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

      • identicon
        Anonymous Coward, 24 Feb 2020 @ 5:35am

        Re:

        I doubt things will turn out the way some captains of industry have dreamt it will. Things go sideways, can't explain that.

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

      • identicon
        Anonymous Coward, 24 Feb 2020 @ 9:33am

        Re:

        I would say it becomes a common carrier more like a public utility such as the telephone, that can't be nuked by providers without a court order.

        The USPS used to censor mail delivery until around 1844, if I recall correctly. AOL used to have "Guides" in its chats until some court said they had to pay them with something more than free time on AOL.

        If you insist on keeping 230, get rid of the single-publication rule, and require affirmative proof that the platform was not the publisher pretending to be detached. This would also prevent anonymous defamation.

        Searches for people by their name should be treated as a right-to-publicity violation (the IP exception for 230). Hmmm that might work...in fact I think it WILL work.

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

        • identicon
          Anonymous Coward, 24 Feb 2020 @ 4:36pm

          Re: Re:

          Searches for people by their name should be treated as a right-to-publicity violation

          Nice try, Jhon.

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

        • icon
          Scary Devil Monastery (profile), 25 Feb 2020 @ 5:11am

          Re: Re:

          "...require affirmative proof that the platform was not the publisher pretending to be detached. This would also prevent anonymous defamation."

          Yea, nice try, Bobmail.

          To summarize your reformulated suggestion you now insist that posting anonymously is fine as long as the platform can prove a negative - something which isn't logically possible?

          I don't know which part of your hateboner visavi 230 I find more objectionable - that you insist on waving it in our faces all the damn time or that you appear to actually believe that slapping a coat of paint on it will make us all open wide.

          "Searches for people by their name should be treated as a right-to-publicity violation..."

          So, the phone book is illegal, according to you? You shouldn't be able to search a newspaper for articles about, say, Nixon?
          Every detective, journalist and historian will have to shut down because you've got your knickers in a twist over the fact that someone can google your real name and come up with whatever fraudulent scheme you have as your new business model?

          "Hmmm that might work...in fact I think it WILL work."

          No, Baghdad bob, your idea, as usual won't work without abolishing or rendering completely illegal several major cornerstones of western democracy.

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

    • icon
      Scary Devil Monastery (profile), 24 Feb 2020 @ 5:38am

      Re:

      "I have no doubt at all about the needed protections given by section 230 but why is it that, more than from any other direction, the entertainment industries seem to want it gone?"

      Because the rallying cry of the copyright cult has been "intermediate liability" for decades.

      If 230 goes away they will have established that the platform (and, by extension, the ISP or telco) is guilty for the content which they allow users to pass through their network.
      The DMCA struggle would then ensue once again, but this time without those safe harbor provisions on the table.

      That with 230 gone it will also become impossible to allow content without gatekeeping means the only legal distribution channel left will be the trusted old 18th century gatekeeping where a small minority of publishers decide who gets to address the public.

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


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