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Free Expression

Section 230 Under Attack: State AGs’ Proposal Threatens Internet As We Know It

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today – a platform where diverse content and free expression thrive – would not exist.

UPDATE: CDT and a broad coalition of allies have sent a response to Congress defending Section 230 and urging Members to reject the AGs‘ proposal.

Earlier this week, nearly all of the state Attorneys General launched a broadside attack on the legal cornerstone of the US Internet. As readers of this blog well know, “Section 230” of the Communications Act has been essential to the creation of user-generated content platforms from Facebook all the way back to GeoCities. The law establishes the fundamental principle that when users distribute unlawful material, it’s those users who should be held liable – not the operators of the websites or other communications platforms they happen to be using.

The AGs, in a letter to Congress, are asking for authority to ignore that principle and criminally prosecute website operators for the actions of their users. The threat such a change would pose to user-generated content platforms, and thus to online free expression, would be hard to overstate.

Section 230 says that operators of websites and other “interactive computer services” cannot be treated in court as the speaker or publisher of users’ content. Thanks to this protection, companies have launched a stunning variety of services, users have enthusiastically embraced them, and the US has become the world leader in innovative online communication tools. Without Section 230, creating and operating such tools would carry crippling liability risks and the Internet would not be nearly the dynamic platform for innovation and free expression that it is today.

Of course, the Internet is not all roses. As in any open forum for free expression, there is content that is offensive, deplorable, and illegal. In the interest of pursuing one particularly noxious kind of traffic – online advertisements for child sex trafficking – the AGs propose an exception to Section 230 for all state criminal laws. Nothing currently prevents AGs from using state criminal laws to prosecute the actual traffickers, but in their letter they ask for additional authority to prosecute the websites traffickers use to advertise.

The AGs characterize their proposal as a narrow, targeted solution to combat child trafficking. It is anything but that. It would apply to all manners of criminal statutes, right down to defamation (criminal in many states) and miscellaneous misdemeanor provisions regarding such things as the sale of spray paint to minors. The proposal is a wolf in sheep’s clothing that will have serious and immediate consequences for all hosts, blogs, search engines, and other services with interactive features. Instead of being able to freely operate their platforms, services hosting any third-party content would face a vast and open-ended array of legal risks, with each new post by users creating a potential basis for prosecution under literally thousands of criminal statutes on a state-by-state basis. Keeping up with state laws and managing that risk would be a huge burden, especially for smaller companies, thereby creating strong incentives to limit user-generated content. Had this been the legal regime from the beginning, many platforms we know today might not exist at all.

In short, the AGs proposal would gut Section 230’s protections not just for some narrow set of criminal actors or activity, but for each and every platform that relies on Section 230 to make the Internet what is. Combating illegal activity online is a difficult challenge, and how best to do so is an important discussion to have. Nonetheless, the solution cannot be to scrap the policy framework that enables the thriving array of completely legitimate free expression, innovation, and commerce that the Internet enjoys today.

Crime is going happen on the Internet, just as it can everywhere. The answer is not to undermine the whole system. CDT has been a strong defender of Section 230 since it was first proposed, and we are hard at work to make sure the AGs’ proposal is treated as it should be – as a non-starter.