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Protect Free Speech Guarantees of Communications Decency Act

One of the most important but unsung laws that gave us the Internet we know today is section 230 of the Communications Decency Act. Passed at the dawn of the Internet’s popularization in 1996, that law immunized providers of interactive communications services—websites and such—from responsibility for the actions of their users.

CDA section 230 is rooted in an eminently sound, common-law theory of justice: that people are responsible for their own acts and not those of others. It’s unwise to deviate from timeless rules of right and wrong, even when doing so appears efficient.

The practical upshot of CDA section 230 was to give us the Internet we’ve got today. If operators of websites were responsible for what each of their users posted online, they could be on the hook for every potential defamation, infliction of emotional distress, trade secret violation, and so on.

That isn’t some curious legal corner. If they were liable for the wrongdoing of others, websites and services wouldn’t just hire a bunch of compliance staff to police every post and settle every online dispute. From the biggest to the smallest—from Facebook and Google down to the smallest niche hobby site—they would clamp down on what we get to do online. Our ability to interact would diminish, and we wouldn’t have half the sites and services that today allow us to upload, comment, and share material and ideas.

So it was with dismay that I noted the introduction this spring of a bill that makes inroads against CDA section 230. The awkwardly named “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” is a standard “think-of-the-children” bill that undercuts the protections of CDA section 230 and thus all of our access to online participation and content.

Because some people use web sites in furtherance of sex trafficking crimes, the legislation begins to reverse timeless standards of responsibility and make automated websites and services responsible for what people do with them. The bill allows operators of websites and other services to be criminally responsible if they exhibit “reckless disregard” as to whether information posted on them furthers a sex trafficking offense.

That sounds eminently reasonable, and it goes after a crime that everyone agrees is deeply disturbing and wrong, but there is nothing in justice that makes a website responsible for the wrongful acts of its users.

If a web operator is actually involved in crime, of course, the benefits of CDA section 230 should and do vanish. But the rule against deputizing websites into law enforcement should stay in place. Even requiring them to have a quick look at what their users post would be very costly.

The incursion on the CDA’s rule of justice suggested by the House bill is just the beginning of the breakdown that could come. Just last week, for example, Dallas police sergeant Demetrick Pennie wrote about his lawsuit arguing that Internet and social media giants Twitter, Facebook, and Google should bear responsibility for an attack that killed five of his friends and colleagues last year.

Here again, the subject matter evokes our sympathy. Killing is a dreadful wrong, and the vast majority of police officers have committed themselves to the betterment of their communities. But police killings do no more than sex crimes to undercut the solid rule of justice embedded in CDA section 230.

Sgt. Pennie’s article speaks of “unregulated social media providers” as if communications platforms are naturally supposed to be regulated. Not so. Not in an America committed as we are to free speech. What’s subtly on display in Sgt. Pennie’s piece is the direction of the Internet if CDA section 230 gives way: a less-free, less-robust medium for us all.

My dismay deepened today upon learning that Senators Rob Portman (R-OH) and Claire MCaskill (D-MO) plan to introduce legislation that may hem in on the Internet and undercut sound principles of justice in similar ways to the House bill.

They have a well-known effort underway to expose and punish Backpage.com for what they say is knowing facilitation of online sex trafficking. That’s a very sympathetic cause, and Backpage may have been skirting the CDA’s liability line. But it would be profoundly concerning and regrettable for all of us fully law-abiding Internet users if the effort to stop Backpage were to undercut the sound principle that online intermediaries hosting or republishing others’ speech are not legally responsible for what those others say and do.