Earning Virtual Responsibility: Raising the Level of Accountability for Interactive Computer Service Providers Due to User-Generated Trafficking.

• Author: Patel, Dhiral

"The explosive growth of the Internet has brought far-reaching social and economic benefits. However, largely unrestrained by regulation, it has also become a salt lick for illicit activity." (1)

1. Introduction

   The internet's lack of regulation has led it to be a breeding ground of anonymous, illegal activity. (2) Specifically, sex traffickers have found new avenues to exploit vulnerable women and children while remaining hidden under the internet's privacy veil. (3) For example, Backpage.com (Backpage) was known for hosting "80 percent of the online advertising for illegal commercial sex in the United States." (4) Traffickers flourish online in large part because websites have no general duty to monitor or remove content, even if law enforcement agencies uncover illegal content. (5) Congress intended to keep most of the internet unregulated when it enacted the Telecommunications Act of 1996, and sex trafficking via the internet still continues under this deregulated regime. (6)

   Section 230 (section 230) of the Communications Decency Act (CDA) states that the law should not treat internet service providers as publishers of information provided by another content provider or third-party user. (7) An "interactive computer service" is an information system that grants multiple users access to a specific computer server. (8) Courts have defined Interactive Computer Service Providers (ICSPs) to include a broad range of services, ranging from social media platforms like Facebook and Twitter, to search engines and broadband providers like Google and Comcast. (9) While publishers are liable for illegal content, section 230 shields ICSPs from liability if: they are, in fact, an ICSP; the claim is based on content provided by a third-party user; and the claim considers ICSPs the publisher of that content.10 Accordingly, judges have interpreted section 230 to exempt ICSPs from potential liability arising from their user-generated content. (11)

   Congress's deregulation of the internet reflects a market-based approach. (12) From 2014 to 2019, annual sex trafficking reports increased by over fifteen million, which led members of the Senate Judiciary Committee to introduce a bipartisan bill to address those trafficking concerns. (13) The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT) would amend section 230 to clarify when to impose criminal and civil liability on ICSPs. (14) Unlike the judicial interpretation of the "Good Samaritan" clause of section 230, which provides immunity for ICSPs that make "good faith" efforts to prevent trafficking, EARN IT would require ICSPs to prevent, identify, disrupt, and report online sexual exploitation of children in order to be protected from liability. (15)

   Despite the valid public interest in deterring online sex trafficking, many legislators contested EARN IT because it would essentially coerce ICSPs to conduct a search to retain users' exploitative content and location data: a type of search law enforcement agencies typically conduct. (16) Rather than automatically shielding ICSPs from liability, EARN IT would require ICSPs to obtain immunity by following the recommended "best practices" to mitigate illicit activity. (17) EARN IT attempts to regulate private internet activity by having ICSPs proactively screen users and their data to detect sexually abusive content and disable it. (18) Specifically, EARN IT could potentially align law enforcement with ICSPs in a way that converts them into government actors who perform digital searches of private user data without obtaining a warrant supported by probable cause. (19) Moreover, ICSPs' lack of compliance could effectively force them and other online platforms to perform searches normally conducted by law enforcement or risk being subject to liability. (20)

   This Note critically examines the CDA's history and the proposed language of EARN IT to better understand Congress's attempt to remedy online sex trafficking. (21) This Note also seeks to address the weighing of government interests in eliminating sex trafficking against users' privacy concerns. (22) This Note concludes by offering policy recommendations for the government to better balance its interest in preventing the continuation of online sex trafficking without having to substantially intrude on users' online privacy. (23)

2. History

   1. Human Trafficking and Technology

      With an estimated average of 40.3 million victims a year, "[h]uman trafficking is the largest manifestation of slavery today." (24) Globally, one of the most common forms of human trafficking is sex trafficking-where traffickers use various methods of coercion, such as force and fraud, to control their victims by engaging them in commercial sex acts or labor services against their will. (25) The U.S. government understandably desires to prevent and deter online sex trafficking because it undercuts core human rights and endangers vulnerable communities. (26) Nevertheless, the internet is a rapidly growing crime venue that requires more fortified legislation. (27) The internet is a desirable platform for traffickers to reach their audience because traffickers can remain unknown through the use of anonymous message boards and forums. (28) One of many ways traffickers target their consumers is by anonymously posting images of potential victims, permitting consumers to bid for them on the internet, and receiving payment for the sexual services via the internet. (29)

   2. Regulation of Speech on the Internet

      1. Legislative History of the CDA

         Prior to the CDA, the internet had minimal provisions addressing sexual exploitation of children. (30) Senator John James Exon introduced the CDA to further prevent youth exposure to predatory, sexual content. (31) The CDA establishes civil and/or criminal liability for knowingly displaying or sending content to any minor depicting illicit sexual activity that a community would find patently offensive. (32)

         Originally, the CDA did not provide ICSPs any liability defenses. (33) Without these defenses, ICSPs became concerned regarding the difficult task of tracking all their users' data. (34) Eventually, the enacted version of the CDA provided protections against criminal and civil liability when ICSPs made good-faith efforts to restrict access to offensive material. (35) These protections enable ICSPs to raise an affirmative defense to an action brought arising out of third-party produced content; without the protections, ICSPs faced the impossible task of attempting to monitor and censor millions of users and their information. (36)

         Even with the added protections, there was bipartisan congressional opposition toward the CDA. (37) Conservative legislators believed the CDA did not provide enough regulation and pushed for alternative legislation to censor the internet without the defenses for good-faith efforts to monitor and restrict certain content; on the other hand, younger, more liberal legislators believed the CDA permitted the federal government to limit free speech and "trample the prized freedoms found in cyberspace." (38) Both sides nevertheless maintained that the government should have the power to regulate speech when it comes to protecting children. (39)

      2. Section 230 of the CDA

         The Telecommunications Act of 1996 is responsible for significantly altering American telecommunication law through its deregulation of the broadcasting market. (40) Today, due to this deregulation, all that remains of the CDA is a separate provision found at 47 U.S.C. [section] 230 entitled: "Protection for private blocking and screening of offensive material." (41) This section, now referred to as "section 230," protects ICSPs from incurring liability for third-party content on their sites. (42) Due to the ever-changing nature of the internet, courts have interpreted the scope of section 230 as internet communications continue to advance. (43) Specifically, the majority of litigation and controversy comes from section 230(c), which states:

         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. ... No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of [illegal] material.... (44) The language of section 230(c)(1) clarifies that an ICSP cannot be considered a publisher or speaker with respect to information posted by others because ICSPs typically do not edit or create their user's content or specific postings. (45) Additionally, subsections 230(c)(2)(A) and (B) immunize ICSPs when they act in good faith to further prevent access to the obscene material. (46)

      3. Judicial Application of the CDA

         The American Civil Liberties Union (ACLU) became one of the first parties to file suit after Congress passed the CDA. (47) In Reno v. ACLU, (48) the Supreme Court struck down several provisions of the CDA due to the vagueness of certain requirements and the resulting harmful effects on free speech. (49) The Court reasoned that the CDA poses an unacceptable burden on free speech because there are less restrictive alternatives to achieve its stated purpose.50 According to the Court, the risk that some minors may be exposed to indecent material does not justify a vague, blanket restriction on free speech. (51) Although the Reno decision struck down some specific provisions of the CDA, the Court kept others intact, including section 230. (52)

         Soon after Reno, in Zeran v. America Online, Inc.,53 the Fourth Circuit Court of Appeals upheld the immunities provided in section 230. (54) After the Oklahoma City bombing in 1995, an unknown America Online (AOL) user posted t-shirts for sale containing inappropriate slogans regarding the bombings. (55) Zeran, who had nothing to do with the posting-but whose phone number was associated with it-sued...