In a July 23, 2013 letter, nearly every state attorney general urged Congress to amend Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (the "CDA"), to allow states to prosecute websites under state criminal laws for unlawful content posted by users. If adopted, the proposed amendment would dramatically change the landscape of the Internet. The AGs' proposal has been met with strong criticism by Internet free speech groups and legal scholars.
Congress enacted the CDA in 1996. Portions of the law originally barred dissemination of indecent materials to minors, but the Supreme Court struck those down under the First Amendment in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). The protections for online service providers in Section 230 remained intact.
Congress designed Section 230 to promote development of the Internet by shielding websites and other online providers from liability based on user-generated content. The statute prohibits treating an online provider "as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Congress also set out to give providers incentives to voluntarily police and remove objectionable content. Section 230 prohibits online providers from being liable for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider … considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." Id. § 230(c)(2)(A). The law provides broad immunity and expressly preempts all inconsistent state and local laws. Id. § 230(e)(1). At the same time, Section 230 also states that "[n]othing in this section shall be construed to impair the enforcement of ... any … Federal criminal statute." Id. § 230(e)(1).
The AGs propose to add the words "or state" between "Federal" and "criminal," to allow states to prosecute online service providers for third-party content based on state criminal laws. The impetus for this change, the AGs wrote, is their desire to prosecute "online classified ad services," which they claim are "the vehicles for advertising the victims of the child sex trade." The amendment is necessary, they wrote, because "federal courts have broadly interpreted the immunity provided by the CDA," and "recently … interpreted" the statute to preempt state laws targeting such websites.
In the last year, three courts have enjoined state laws creating felony crimes for websites and other online providers for "advertising commercial sexual abuse of a minor." Davis Wright Tremaine was lead counsel in those cases, winning permanent injunctions barring enforcement of laws in Washington and Tennessee, and recently obtaining a preliminary injunction against a similar law in New Jersey. The courts found not only that Section 230 preempts the laws, but also that the laws are unconstitutional under the First Amendment and the Commerce Clause. See Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012); Backpage.com, LLC v. Cooper,— F. Supp. 2d—, 2013 WL 1558785 (M.D. Tenn. Jan. 3, 2013).
A group of organizations and academics committed to free speech on the Internet responded to the AGs' letter, expressing concern that the proposed amendment would "jeopardize the continued growth of the entire Internet industry and the free expression rights of Internet users everywhere." Exposing websites and other online providers to a patchwork of numerous state criminal laws, they wrote, would mean that "content hosts, blogging platforms, social networks, and even search engines would risk liability every time they hosted or displayed content provided by others, including user-generated content." Among those who signed the letter are the American Civil Liberties Union, the Center for Democracy and Technology, and the Electronic Frontier Foundation.
Ambika Kumar Doran practices media, Internet, and intellectual property law. She counsels and represents clients on defamation, privacy, commercial speech, public records, courtroom access, other First Amendment issues, copyright, trademark, and Section 230 immunity. Jim Grant has 28 years of experience in complex commercial litigation, representing Internet, telecommunications and cable companies on a variety of issues, including First Amendment, Section 230, copyright and class actions. He formerly served as vice president and chief litigation counsel of AT&T Wireless Services, Inc. They both work at Davis Wright Tremaine's Seattle office.