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Why the US Communications Decency Act has been changed

Why the US Communications Decency Act has been changed

by Karl D. Stephan | March 23, 2018

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Editor’s note: This week the US Senate passed a bill amending Section 230 of the Communications Decency Act (1996) with the goal of stemming online sex trafficking. The legislation allows more state and civil lawsuits against websites related to online sex trafficking, for "knowingly assisting, supporting or facilitating" crimes. The bill has been sent to President Trump for signing into law.

The following article by Professor Karl Stephan, written earlier this month in support of the legislation, explains how the decency law unintentionally came to facilitate the darkest material on the internet.

In George Orwell's dystopian novel 1984, the Ministry of Peace fights wars and the Ministry of Truth tells lies.  In the United States, internet service providers are currently immune from prosecution for sex trafficking carried out by third parties who use their services. Why? Because of the Communications Decency Act of 1996, or CDA.

To be fair to the drafters of the original legislation, they really did intend to clean up the Internet, which was a very different place in 1996 than it is today. Congress passed and President Clinton signed the CDA with the intention of making obscene or indecent web content illegal.  

But the following year, the U.S. Supreme Court agreed with the American Civil Liberties Union that the indecency restrictions violated the principle of free speech, and voided them. But the court let stand a part of the law called Section 230.

Section 230 is a classic case of unintended consequences.  What it does is to make internet service providers (ISPs and other analogous enterprises such as Google and Facebook, neither of which existed in 1997) immune from liability when they carry material provided by third parties, such as for example sex traffickers. The motivation for this section can be understood if we compare the Internet to an older form of communication, namely the newspaper.

Any newspaper that carries real estate ads must make sure that the ads do not discriminate in ways that restrict federal law that grants equal rights to housing. Just to cite an egregious example, a person can't run an ad offering a house for rent to whites only, or to Sikhs only. This is because newspaper organizations are legally the publishers of their content, and can be held liable for whatever they decide in their editorial wisdom to publish.

Without Section 230, ISPs would be treated like publishers of their content, whether they themselves originated it or whether it came from third parties. Back in 1996, legislators worried that if the ISPs were liable for the third-party content on their sites, they would be reluctant to restrict it in accordance with the rest of the CDA because this action would make them look like publishers.  

So, in its wisdom Congress granted legal immunity from liability to the ISPs, intending that this would free the ISPs to prohibit certain types of material without worrying about being sued for the material they didn't prohibit. 

If that sounds like tortuous reasoning, it is. As the Internet grew more commercialized and sex traffickers in particular found what a boon it was to their business, concern mounted that Section 230 was providing a loophole for exactly the kinds of activity that the CDA was designed to prevent. In 2013, for example, the attorneys general of 47 states wrote to Congress asking that the civil and criminal immunities provided by Section 230 be removed. And just last month, a bill to do that was passed by the U. S. House, although it now awaits action in the Senate.

In the meantime, websites such as Backpage.com use the Internet to provide human beings for sale. One study by the National Center for Missing and Exploited Children found that 73% of all child sex trafficking cases that they dealt with involved this website. Because of the CDA, the high-level operators of these types of exploitative sites continue to do their evil work while making sure that the only people who get caught are usually the victims: the women and children trapped in sex trafficking operations. 

You would think that Google, with its corporate motto of "Don't be evil," would be on the side of those who wish to amend Section 230 to allow prosecution of illegal and heinous activities such as sex trafficking. But you would be wrong in this case. Last August, members of Congress received an email from Google's public policy counsel with the headline "CDA 230 Issue," and asked them not to support changes to Section 230, which the email termed "one of the foundational statutes for the Internet." 

If we follow the money, it is clear that a good fraction of all advertising revenues gleaned from the Internet involve sex in one way or another. Probably that iceberg is too big to tackle all at once, but its visible tip, one of the most horrendous aspects of it, is the exploitation of homeless and stray children by the sex industry.  

There are not a lot of moral issues on which most people agree anymore, but certainly one of them is the fact that enticing a 12-year-old girl into prostitution is about as wrong as you can get. And the Internet is now the preferred way of advertising for this kind of thing. And Section 230 makes it very hard or impossible to prosecute the kingpins of sex trafficking on the web.

In this blog I generally try to avoid political advocacy, because it's a guaranteed way to turn off approximately half my audience, at least. But I'm making an exception in this case. The National Center on Sexual Exploitation operates a number of programs focused on ending various kinds of sexual wrongdoing.  

At their website endsexualexploitation.org they have legislative updates about the progress of H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act, and S.1693, the Stop Enabling Sex Traffickers Act, both of which bills would amend Section 230 to allow state and local prosecution of those who use the Internet to advertise their sex-trafficking activities. If you want to do something about this problem, email your senator soon.  

And just to let you know that I don't give advice I wouldn't take, I just emailed my two senators about this myself. 

Sources:  The Drew Mariani Show on Relevant Radio, a Catholic radio network, carried an interview with a representative of the National Center on Sexual Exploitation on Feb. 27, which is how I learned about this issue. The Center's website at https://endsexualexploitation.org/cda/ has background information on the CDA and details of legislation to change it.  I also referred to Wikipedia articles on the Communications Decency Act and its Section 230.  The text of the email from a Google lobbyist can be found at http://endsexualexploitation.org/wp-content/uploads/Google-Lobbyist-Writing-Congressional-Staffers.pdf.

Karl D. Stephan is a professor of electrical engineering at Texas State University in San Marcos, Texas. This article has been republished, with permission, from his blog Engineering Ethics, which is a MercatorNet partner site. His ebook Ethical and Otherwise: Engineering In the Headlines is available in Kindle format and also in the iTunes store.

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