It's also why Backpage is immune from penalties when users post prostitution ads. In the last year, Backpage has defeated legislation in two states -- Washington and Tennessee -- that would have imposed criminal sanctions on Web site operators who allowed users to post sex ads that featured minors.
Now, a coalition of 47 state attorneys general say the law should be changed so that Web site operators can be held responsible if users violate state criminal laws. The attorneys general say this change is necessary in order to stop sex trafficking on sites like Backpage.com.
In a letter sent to Congress last week, they ask for the law -- Section 230 of the Communications Decency Act -- to be amended “so that it restores to state and local authorities their traditional jurisdiction to investigate and prosecute those who promote prostitution and endanger our children.”
Web services' broad immunity for users' posts already has some exceptions: Online companies can face liability if users post material that violates federal laws, or intellectual property laws. The attorneys general are framing their proposal as merely adding another exception -- one for material that violates state laws.
But digital rights groups and online companies warn that this revision could pose a significant threat to free speech online. That's because states and cities have a far broader range of criminal laws than the federal government.
The Electronic Frontier Foundation rightly points out that figuring out whether users' posts violate local laws is anything but simple. “If the prospect of ensuring user compliance with over 50 sets of competing criminal laws does not sound daunting in the abstract, consider the range of unique, potentially inconsistent, and outright bizarre state criminal laws on the books, including those criminalizing libel, the publication of gun permit information, and even the sharing of Netflix passwords,” the EFF says in a blog post.
Today, a broad coalition of watchdogs, legal scholars and business groups wrote to Congress to oppose the potential revision of the Communications Decency Act. “Section 230 is the legal cornerstone of the Internet economy, enabling the unprecedented scope of lawful commerce and free expression that the Internet supports today,” the groups say in a letter.
The letter adds that the attorneys general proposal would create “open-ended risk” to Web services companies. “By hosting third-party content, online service providers would expose themselves to potential prosecution under literally thousands of criminal statutes on a state-by-state basis. Keeping up with the thicket of state criminal laws would be a significant burden, especially for start-ups and smaller companies, and the risk of liability would create a strong incentive for companies to minimize or avoid interactive features and user-generated content.”
The letter adds that the attorneys general say they are concerned about online ads for child prostitution, but that the revision would extend far beyond such ads. “There is nothing narrow or targeted about the AGs’ proposal. It would open the door to liability for intermediaries based on the activity of their users under an almost limitless range of state and local criminal laws, covering everything from defamation (which is criminal in many states) to miscellaneous misdemeanors like selling spray paint or tanning services to minors.”