Congress’s end run around a pillar of online free speech

November 10, 2017
Image via Wikimedia Commons.

Free-speech advocatesincluding the Electronic Frontier Foundation and the Center for Democracy and Technologyare afraid that a bill currently making its way through Congress could significantly weaken existing protections for online speech.

In the United States, one of the most critical planks supporting free expression online is a section of the 1996 Communications Decency Act known as Section 230, often referred to as the “safe harbor” clause. The EFF describes it as “the most important law protecting internet speech.”

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Section 230 states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In a nutshell, this clause gives any online service provider immunity from legal liability for the content that its members or users post (unless it involves either criminal activity or intellectual property).

This means that platforms like Facebook and Twitter and Amazon can’t be sued if one of their users publishes something that is libellous or offensive. But it also protects much smaller platforms and online communities from similar kinds of liability, and digital news companies and online publishers from being taken to court for the comments that readers post on articles.

The risk is that if those protections are weakened, publishers will decide it’s not worth it to host any user-generated content at all, which could significantly reduce the amount of reader interaction in the form of crowdsourced and collaborative journalism.

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The bill that the EFF and others are so concerned about is called the Stop Enabling Sex Traffickers Act or SESTA, which would amend Section 230. The bill was approved by the Senate Commerce Committee this week.

According to its main sponsor, Republican Senator Bob Portman from Ohio, the legislation will make it easier to crack down on sex trafficking, which is facilitated in some cases through online services like Backpage, a provider of adult classified-ad listings that is currently facing a potential grand jury indictment.

Most people would agree that bringing an end to sex trafficking is a noble goalalthough there are those who disagree about whether SESTA will be able to do so (some experts believe it could actually expose sex trafficking victims to more harm, and make it more difficult to stop the practice by driving it underground). But in the process of reaching that goal, the proposed law could blast a large hole right through the free-speech protections of Section 230.

“An internet without Section 230 is one that diminishes the voice of the individual online, limits our access to information and diverse platforms for our speech, and pressures all intermediaries to act as gatekeepers and judge user content,” says Nuala O’Connor, president and CEO of the Center for Democracy and Technology.

While it is celebrated by free-speech advocates, however, not everyone is a fan of Section 230. Some observers say there is a growing belief in Washington that the law gives Internet companies too much freedom, and that its protections should be loosened so the government can hold Facebook and Google accountable for things like fake news and hate speech.

There appears to be “increasing skepticism about Section 230 inside the Beltway, and in fact increasing skepticism about Silicon Valley,” says Eric Goldman, an expert in Internet law at Santa Clara University. “There’s a widespread fear that internet companies are causing society’s ills rather than just holding a mirror up to them.”

SESTA’s critics warn that the proposed law could lead to a significant smothering of online speech of all kinds, not just speech about sex trafficking. That’s because the bill creates a new kind of liability by making it a crime to “knowingly facilitate, assist, or support” any such activity.

Daphne Keller of the Stanford Center for Internet and Society says that the new law could push some platforms and publishers to crack down on a wide variety of speech, to avoid the threat of lawsuits. It would give them “a reason to err on the side of removing internet users’ speech in response to any controversy,” she says, “and in response to false or mistaken allegations, which are often levied against online speech.”

Cindy Cohn, executive director of the EFF, said in an interview that she fears the bill will put pressure on small websites and online communities in particular, and some might decide to shut down for fear of lawsuits, while others might never get into the market at all. And the web in general would ultimately be the poorer for it.

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“I worry about this a lot, because we’re already in a place where only a few places are hosting people’s speech, and now there’s a lot more pressure on them to limit what people can say on these platforms,” says Cohn. “It will shrink the number of voices because it will shrink the number of places that are willing to host those voices. Ultimately it won’t be worth it to host a bulletin board or comments, and that will just entrench the big guys.”

Goldman says that even after an amendment this week that tried to tighten up the definition of what constitutes “knowledge of conduct,” the language in the bill is still far too broad, and could wind up catching all kinds of other activity in its net.

Not only that, but he says SESTA could potentially create a kind of boomerang effect, by creating a perverse incentive for some sites to ignore all sexually related posts or behaviorsince doing anything about them would suggest knowledge, and therefore liability if they miss something.

“If a site decides the best strategy is to dial back its efforts to moderate content” so that it can claim not to have knowledge, he says, “the bill could have the counterproductive result of exacerbating other types of antisocial behavior, because some companies won’t bother to moderate at all.”

Senator Ron Wyden, who co-wrote the original Section 230 clause into the Communications Decency Act, has said he opposes SESTA because of the damage it could do to online speech, and to startups who rely on Section 230’s protections to remain in business, or to even make their business viable at all. “The bill that we’re looking at today is the wrong answer to a serious problem,” he told the Senate Commerce Committee in September.

This week, Wyden put a hold on the bill, in the hope that some senators might reconsider their support. But the pressure to do something about sex trafficking is intensifying, and with industry groups like the Internet Association behind it and widespread support in Congress, observers say SESTA stands a good chance of becoming law.

And if it does, it could significantly curtail speech online in ways that will affect not just large social platforms like Facebook and Twitter but online publishers of all kinds.

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Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.