Today, a coalition of advocacy organizations, technology and media trade groups, and legal scholars joined together to urge Congress to protect free expression online and reject legislation that would make potential criminals of most online content platforms. With the passage of the Stop Advertising Victims of Exploitation (SAVE) Act in the House and counterpart bills anticipated in the Senate, lawmakers are considering major changes to the legal protections that support free expression online, with laws that would hold Internet intermediaries liable for third-party content hosted on their sites.
The Center for Democracy & Technology (CDT) is a leading member of the coalition, and has long advocated for the role that the strong protections of Section 230 of the Communications Act play in maintaining an online environment that supports free speech. These protections allow website operators, app developers, and online services to create innovative new ways to support millions of individuals’ expression online, without risk of being liable for the content users create. Current legislative proposals would create a new risk of federal criminal liability for these speech intermediaries.
“When faced with potential federal criminal liability for their users’ content, online platforms will censor as a self-defense mechanism,” said Emma Llanso, Director of CDT’s Free Expression Project. “Wholly innocent operators of smaller sites and publications could be driven out of business if they are hauled into court to defend themselves on federal criminal charges. And, rather than risk the immense expense of mounting a criminal defense, website operators will take down a much broader array of constitutionally protected speech than what’s targeted by these bills.”
Several proposals to Congress would undermine this legal framework by creating new federal criminal liability for content hosts whose systems are used to upload material related to child trafficking. CDT applauds the commendable work of anti-child-trafficking advocates and House leadership in passing a number of important bills this week that aim to increase funding for victims services and provide additional resources to prosecutors. But the new liability regime found in the SAVE Act (HR 285 in this Congress, S.2536 in the previous session) could be used to prosecute entities that did not create the trafficking-related content and have no intent to participate in a trafficking venture.
“Unfortunately, the threat of liability could actively discourage good-faith efforts to screen ads and moderate content, since any review of users’ content could open the door to future prosecution,” added Llanso.
This week, the House passed HR 285, along with eleven other anti-trafficking bills. As the important work of fighting child trafficking moves to the Senate, CDT joins a broad coalition in urging Congress to reject federal criminal publishing liability and to preserve the solid foundations of freedom of expression online.