State AGs, ACLU at odds over Internet free speech rule

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A group of state attorney generals wrote a letter to Congress last month asking to amend a 1998 bill that makes states not liable for the comments visitors post on its pages.

The attorney generals, writing on behalf of the National Association of Attorneys General, argues that some websites have become a place where criminals advertise for illegal activities like child sex trafficking, but are not able to be prosecuted under Section 230 of the Communications Decency Act of 1998.

The AGs have asked Congress to amend Section 230 so that websites can be liable based on accessory, accomplice, facilitation or similar legal theories for user violations of state criminal laws.

“The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade,” the AGs wrote. “But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA so that it restores to State and local authorities their traditional jurisdiction to investigate and prosecute those who promote prostitution and endanger our children.”

While their intention is noble, the American Civil Liberties Union argues that changing that statute would turn the web “upside-down as we know it.”

“What does this mean for the web as we know it? Almost everything,” wrote Lee Rowland and Gabe Rottman wrote on the ACLU’s blog. “It means that Yelp can’t be held legally responsible for a negative restaurant review written by one of its users. It means Craigslist doesn’t have to screen every personal ad to make sure it isn’t a cleverly-disguised prostitution pitch. It means that Reddit could, and did, offer its users a thread tracking the manhunt for the Boston Marathon bombers in real time without censoring users’ reports from the BPD scanner.”

Rowland and Rottman argue that Section 230 was passed in response to the early days of the Internet when websites faced lawsuits over speech by their users and was not passed to be a legal safe haven for sites hosting illegal content. Instead, it was to have sites remove offensive or illegal user-generated content then become legally responsible for that content.

“Without Section 230’s safe harbor to ensure that websites aren’t legally on the hook for content created by their users, websites would be responsible for policing every user-submitted word for possible criminal violations — which simply isn’t feasible,” the duo wrote.” Avoiding legal risk would require even the smallest blog to hire an army of lawyers to compare user content against the mosaic of all 50 states’ ever-changing criminal laws.”

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ACLU, Gabe Rottman, Lee Rowland, National Association of Attorneys General, States
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