New Jersey lawmakers are considering
new legislation that would require Facebook, MySpace and others to police social networking sites for offensive posts or else face potential consumer fraud lawsuits.
But some
lawyers say that even if the measure is enacted, it's not likely to have much impact on social networking sites because the federal Communications Decency Act immunizes such sites from lawsuits based
on material posted by users.
The bill is part of state Attorney General Anne Milgram's Internet safety initiative. "The social networking site safety act is intended to deter cyber-bullying and
the misuse of social networking Web sites," the Office of Attorney General said in a statement about the measure. "The bill empowers users of social networking sites to take steps to stop harassment
or exploitation."
Last year, Milgram garnered headlines by launching a fraud investigation of gossip
site JuicyCampus.com -- where users frequently posted insults about college students -- but no legal action resulted. (That site folded last month for financial reasons.)
Attempts to rein in
cyberbullying might be politically popular, but this type of state effort to regulate global Web sites is also likely to prove useless, say cyber lawyers. "We need to recognize that legislating on the
Internet can't be done on a state-by-state basis," said Parry Aftab, an expert on Web safety and cyber-abuse. "We can't have a different law in each state."
Among other provisions, the Social
Networking Safety Act (A. 3757, S. 2705) says social networking sites potentially violate state consumer fraud laws by failing to revoke the access of anyone accused of making a "harassing
communication."
The law makes an exception for sites that establish a reporting mechanism -- in the form of "a readily identifiable icon" -- for members to complain about posts. The sites would
then be required to investigate and make referrals to law enforcement where appropriate. They also would have to allow users to block messages from offenders.
The act also imposes civil liability
on users who make offensive posts.
A Facebook spokesperson said the company hasn't taken an official position on the bill, but already has the infrastructure the measure requires. "We will remove
offensive or harassing content reported to us and may take further action, including disabling the account of the user who is responsible," the spokesperson said. A MySpace spokesperson declined to
comment because the bill is still taking shape.
Cyberlaw experts say the bill in its current form presents several problems. Not only do the portions directed at Web sites appear to be preempted
by the federal Communications Decency Act, but they might also violate the constitutional ban on state regulation of interstate commerce, said Eric Goldman, director of the High Tech Law Institute at
Santa Clara University.
(The most recent version of the bill says that civil lawsuits against sites are only allowed to the extent that the federal Communications Decency Act doesn't preempt
them. But some lawyers say that provision only makes it more obvious that the bill would be ineffective, because the Communications Decency Act would preempt all civil lawsuits against the sites.)
Goldman adds that the bill's definition of "harassing communication" itself is problematic. The measure defines such statements as "any communication which is directed at a specific person,
serves no legitimate purpose, and a reasonable person would believe is intended to threaten, intimidate or harass another person."
But that broad language is potentially unconstitutional, Goldman
says. While courts have carved out exceptions to free speech laws for "threats of imminent unlawful violence," speech that carries a less immediate threat might be constitutionally protected.
Sam
Bayard, assistant director of the Citizen Media Law Project, adds that the law could give Web sites an incentive to err on the side of blocking users because doing so will avoid lawsuits. That itself
could chill users' free speech rights.
Also, the bill's definition of social networking sites extends far beyond Facebook and MySpace to encompass any Web site with social networking
functionality. That would include many smaller sites that might not be able to easily deploy the measures the bill envisions.
The trade group NetChoice is lobbying against the bill, arguing that
it could affect Web users' free speech rights and also harm online companies. "It imposes obligations on online sites that are unprecedented," said Braden Cox, policy counsel at NetChoice, which
includes member companies like AOL, eBay, News Corp, and Yahoo.
He added that a one-size-fits-all approach made no sense, given the variety of sites that would be subject to the law.
Cox
also questioned the wisdom of asking people to report threats to social networking sites rather than to the police. "If a communication is truly harassing or makes someone fear for their life, they
should go to law enforcement. 911 should be the response -- not www."