So I’m resurrecting some lightly-edited drafts that I worked on a while ago and shelved, and thought I would share this one. It’s a shallow dive into the issues surrounding the recently passed FOSTA-SESTA bills. Please note that this is a short blog post, and I will be simplifying many of the issues either because they are complicated or because I would like to make a bad joke; please feel free to do further reading on these fascinating issues as opposed to writing in the comments, “Derp, it’s more complicated than that.” Yes, I know. You can write entire books on the internet and free speech, and people have.
In order to understand these issues, and why Craigslist removed their personals sections* a little bit of background is in order. In 1996, Congress passed the Communications Decency Act. There was one specific provision of it, Section 230, which became incredibly important. Here is the relevant text:
“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.” Like most statutory language, it seems pretty anodyne and boring. But in 1997, the Fourth District Court of Appeals, in Zeran v. America Online, Inc., 129, F.3d 327 (4th Cir. 1997) held that this bit of text created a federal immunity for service providers for information that came from a third-party user of the service. Also? That AOL could send you as many CDs as AOL wanted to, and you just had to suck it up, buttercup. Ahem. That joke is really funny if you’re old.
I would be hard-pressed to name a single more important, non-Supreme Court,. case in the last 30 years. If I were to restrict it to “cases that impacted the internet,” then the choice would be simple. Zeran (and its progeny), for all practical purposes, and by giving the broadest possible reading to § 230 made our modern internet for better or for worse. To understand why, it helps to understand the difference between an internet “publisher” and a traditional publisher.
Imagine you run a small newspaper in Podunk, Nowhere. One of your journalists writes an article. You publish it. Someone doesn’t like it (thinks it is false), well, they sue you, the publisher, for defamation. So far, so good. Now, imagine that a reader writes a letter to you, and you publish it. A reader letter. Someone doesn’t like what the reader has to say, and guess what? Same thing- you published it, and you can get sued for defamation.**
But that’s not how it works on the internet. As you know from, well, existing, the internet is often the wild west. Despite this, we don’t see constant lawsuits against twitter, or facebook, or the other deep pockets. Because thanks to § 230, these internet companies are absolutely immune to lawsuit for the words of third parties posted on their websites. And because this is a federal law, this supersedes pesky state tort laws, like defamation.
So from 1997 on, § 230 and Zeran had a number of effects on the internet, the majority of which are arguably positive (or, at the very least, pro-internet growth). Arguably, given that the less “control” the publisher had over the content, the less chance of liability, which certainly encouraged the spread of the social networking aspects and self-publication aspects of the internet that we see today.
The flip side is that, arguably, it also encouraged the most toxic aspects of the internet. A newspaper or a traditional publisher has a duty to make sure that the information within it reaches a certain standard; clearly, what we see on the internet does not. The extent to which the loss of the “gatekeeping” is a good or a bad thing depends, I suppose, on how many comments on youtube you’ve read.
So .... that’s is the super, duper, simplified version of § 230 and the growth of the internet.
So what did FOSTA-SESTA do, and why did the Cragislist personals (among certain other websites) shut down? Like most bills, FOSTA-SESTA is trying to do a good thing- curb sex trafficking. And there is a provision within the law that carves out § 230 immunity for websites that post ads for prostitution. The language is sweeping, penalizing any website that promotes or facilitates prostitution and allowing the Man to go after websites for knowingly assisting, facilitating, or supporting sex trafficking.
So while the intentions are good (unless, I guess, you’re a sex trafficker?) the problem is that no one knows how this plays out. Certain sponsors of the legislation are already using it to try and go after regular consensual pornography, which they have labeled a public health crisis. Legal escort sites (ahem) are also under the gun. And then websites like Craigslist, which have neither the time nor the resources to constantly police their personals sections, find it easier to shut them down than to face possible liability.
Moreover, this is an example of the “chilling effect” that government can have on free speech. One easy example is that pounced, a website devoted to furry dating (hey, it’s the internet) had to shutdown because with their limited resources, they couldn’t take the chance with the uncertainty of the new law.
Anyway, I thought I’d throw out a quick primer and encourage people to look into this issue further. The legal framework around the internet (§ 230, net neutrality) is changing, and if you don’t have an opinion, you should read up and get one, because changes in the law can drastically shape the internet.
*That’s really why you are reading this, right? Yeah, we know, and we judge.
**Bonus fun fact. Defamation is general umbrella that encompasses both libel (written) and slander (oral). Of course, this is the law, and things can get more complicated than that, and certain oral comments can be libel depending on other factors such as their permanence, for example, oral comments made in a youtube video; but the basic rule of thumb, especially when dealing with the internet, is that it’s never slander, it’s libel.