The Indecency and Injustice of Section 230 of the Communications Decency Act.

• Author: Leary, Mary Graw

Introduction I. Section 230 of the Communications Decency Act A. Historical Roots B. Purpose C. Text II. The Emergence of Sex Trafficking and Clear CONGRESSIONAL INTENT TO COMBAT IT A. Sex Trafficking Legislation 1. Definition of Sex Trafficking 2. Multidisciplinary Approach with Emphasis on Victims 3. Obstacle to Achieving the TVPA's Goal to Ending Sex Trafficking III. Section 230 Has Thwarted the congressional intent to combat human Trafficking A. Courts Distorted [section] 230 and Created a Regime of De Facto Absolute Immunity, Contrary to Congressional Intent 1. Early CD A Non-Sex Trafficking Cases 2. Websites Block Civil Cases 3. Backpage Blocks State Regulation 4. Websites Block Efforts to Disrupt the Business Model of Advertising Sex-Trafficking Victims for Sale 5. State Civil Litigation Outside the Scop of [section]230 6. Federal Sex Trafficking Civil Cases 7. State Criminal Law Efforts B. Analysis of Case Law 1. Evolution of the Law 2. Curious Record of Congressional Action and Inaction IV. Future A. Recent Legislative Actions 1. Goodlatte Substitute FOSTA 2. SESTA 3. Emergence of a FOSTA-SESTA Compromise B. Consider the Big Picture V. Conclusion INTRODUCTION

The story of Section 230 of the Communications Decency Act (CDA) (1) is one of legislative action and inaction, justice and injustice, and the weighing of priorities and values. Its origin and entrenchment reveal a great deal about the values of the technology industry and the U.S. Congress. Passed in 1996, the CDA was an attempt by Congress to accommodate competing values and facilitate an uncertain but promising future digital world. Since that time, this digital world has changed drastically. Some argue that [section] 230 is in part responsible for the growth of the digital economy and the "Internet as we know it." Others argue that the "Internet as we know it" is not what we want it to be, particularly when it comes to sex trafficking, pornography, child sex-abuse images, and exploitation. It is clear that, whatever [section] 230 did for the legitimate digital economy, it also did for the illicit digital economy.

Nowhere is this more apparent than in the world of sex trafficking. Since its recognition under federal law in 2000, (2) human trafficking has been identified as the fastest growing criminal enterprise in the world. (3) The International Labour Organization released its Global Estimate on Modern Slavery and concluded that forty million people in the world are victims of modern slavery, including sexual slavery, and that women and girls comprise 99% of victims of forced sexual exploitation, with 25% of those victims being children. (4) This growth, which has similar trends in the United States, is largely attributed to the use of the Internet to facilitate the sale of human beings, including children, for rape and sexual abuse. While exact numbers are difficult to ascertain, it is beyond dispute that the use of online advertising to facilitate sex trafficking is a significant factor in the increase of this form of victimization. (5)

Yet, when survivors (6) or state prosecutors attempt to hold liable the very service providers who permit the advertising of sex-trafficking victims--including children--for sale in the largest market to buy human beings in the world, [section] 230 ties their hands. (7) Defendant websites use [section] 230 as a sword and argue that it affords such sites immunity from liability, even if accused of participating in child sex trafficking. Despite consensus that [section] 230 was never designed to create such absolute immunity, courts have struggled to reconcile precedent from an earlier Internet era with the reality of slavery (8) in the current Internet age. The result has been an inability of sex-trafficking victims and state prosecutors to proceed with cases against such businesses that knowingly facilitate sex trafficking.

Since the emergence of this unintended reality, many have called on Congress to update [section] 230 and address this problem. More recently, sex-trafficking survivors, (9) all fifty state attorneys general, (10) and a growing number of courts (11) have called on Congress to amend [section] 230 to restore it to its original purpose of providing limited, not nearly absolute, protections for interactive computer services. Congress has failed to act thusfar. Nevertheless, in 2017, two bills (one in each chamber) have been proposed to address this reality.

This Article examines the development of the jurisprudence regarding online advertising of sex-trafficking victims and juxtaposes the forces that created [section] 230 with those preventing its timely amendment. This Article argues that, although [section]230 was never intended to create a regime of absolute immunity for defendant websites, a perverse interpretation of the non-sex-trafficking jurisprudence for [section] 230 has created a regime of de facto absolute immunity from civil liability or enforcement of state sex-trafficking laws. This phenomenon occurred despite the legislative intent behind [section] 230, and despite the Trafficking Victims Protection Act of 2000 ("TVPA") (12) and its subsequent reauthorizations. (13) Part I explains the impetus behind [section] 230, its history, and its text. Part II examines the rise in recognition of sex trafficking in both domestic and international law. It further summarizes the contours of sex trafficking in the modern world and the role online advertisement has played in its emergence. Part III analyzes the intersection of sex trafficking, the Internet, and [section] 230 and thoroughly assesses the development of jurisprudence culminating in the creation of a regime of de facto immunity. Part IV analyzes recent legislative efforts in both the House and Senate, arguing that the twenty-two year-old statute must be amended to reflect current realities of both the Internet and sex trafficking. Furthermore, it asserts that such an amendment is necessary to return [section] 230 to its original purpose of protecting some Internet companies from specific types of liability, without creating absolute immunity.

1. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT

   1. Historical Roots

      In 1996 the Internet was in its infancy and Congress was struggling with the implications of its development. The Internet of 1996 is unrecognizable today. (14) That "new" "dial up" Internet engine connected people through a novel and experimental "bulletin board" through which events could be organized. (15) Newspapers were just considering having an online presence. (16) "Google" was not a verb, and online research was described as "tough for the amateur researcher." (17) Congressional debate discussed floppy disk drives, usenet groups, and message boards over telephone lines. (18) In this climate, Congress could not have imagined what the Internet would look like two decades into the twenty-first century.

      Congress did, however, recognize a concern about online exploitation. Congress's concern was not sex trafficking because such a term was not recognized at the time. Rather, Congress acknowledged and expressed concern about the potential of the Internet to spread or expose children to obscene material. (19) Section 230 was a component of a broader effort to limit access to explicit material through the Internet. The CDA intended to limit such access and was attached to Title V of the Telecommunications Act of 1996. (20) The CDA prohibited the knowing dissemination of obscene material to children, and sought to incentivize telecommunication companies to participate in blocking explicit material from reaching children. (21) Section 230 was added to the CDA to protect tech companies. In Reno v. ACLU, (22) the Supreme Court struck down as vague some of the more controversial criminal provisions of the CDA, such as the prohibition on the transmission of "indecent material." (23) However, [section] 230 was not challenged, and this protection remains effective law to this day. (24) In fact, tech companies arguably achieved the best of both worlds. After Reno, much of the CDA that tech companies opposed was eliminated, but the provision that was designed to protect them remained. Thus, when the dust settled, tech companies enjoyed increased protections without the regulations.

      The statute itself explicitly outlines the purposes of [section] 230. The text cannot be fully understood, however, without the context of its addition to the CDA. Because the CDA regulates the Internet, many tech companies opposed it in principle and fought it at every opportunity. (25) In this climate, a state court decision caused Congress to respond to tech companies' concerns about regulation and liability.

      In 1995, the New York Superior Court decided Stratton Oakmont, Inc. v. Prodigy Services Co. (26) Prodigy operated a bulletin board called "Money Talks," where members could post information about the financial world. Widely read in the financial sector, Prodigy held itself out as a "family-oriented" corporation that edited material placed on its bulletin boards that it considered inappropriate. (27) Stratton Oakmont sued Prodigy for libel for statements placed on the Money Talks bulletin board, and the state court found Prodigy responsible for that content in part because of its active role in screening out any material it found inappropriate. (28) Prodigy lost its protection as a mere distributor of third-party information. The court labeled it a publisher of the information and thus responsible for material it published. The court found Prodigy to be a publisher under state law because "it voluntarily deleted some messages ... and was therefore legally responsible for the content of defamatory messages that it failed to delete." (29)

      Opponents of the CDA had already expressed the concern that if the CDA were interpreted broadly, service providers would be held criminally liable for providing minors with access to the Internet...