WASHINGTON — A new proposal that tweaks Section 230 immunity of the Communication Decency Act could have major ramifications for online publishers and platforms.
The specific draft bill circulating through Congress, called the “No Immunity for Sex Traffickers Online Act of 2017,” would ensure “vigorous” criminal enforcement,” along with civil remedies, for victims against publishers, platforms and users relating to sexual exploitation.
Section 230, as it stands today, protects online publishers and platforms from being held liable for items that third parties post — at least when it comes to state crimes and civil lawsuits.
The bill, if signed into law, would allow states to indict any online publisher or platform that introduces an underage person to a potential buyer of sex as a conspirator in sex trafficking. It also would allow underage persons paid for sex to subsequently sue any publisher or platform involved in the transaction.
The “No Immunity for Sex Traffickers Online Act of 2017,” introduced by Rep. Wagner, appears to target services like Backpage.com, which in January abruptly bowed to pressure and replaced its online sex ads with the word “censored” in red.
Backpage.com’s move came in the midst of a Senate probe, two federal lawsuits, a federal grand jury inquiry in Arizona and criminal charges in California accusing its operators of pimping underage persons.
But while the "No Immunity" bill focuses on Backpage.com-centric online entities, the piece of legislation, if passed, could initiate prosecution and civil suits against other internet entities that allow content posted by users.
Industry attorney Lawrence Walters of Walters Law Group told XBIZ that the proposal is flawed because creating loopholes in Section 230 immunity undermines “core First Amendment principles” designed to protect the free flow of information online.
“Section 230 immunity is broad for a reason,” Walters said. “Holding online service providers responsible for any category of wrongful actions by their users, however narrow, imposes an intolerable burden on those companies to review each and every piece of content flowing through their servers for potential liability.
''Imposing that kind of burden on internet service providers will stifle online innovation and result in huge collateral damage on existing companies — some of whom may choose to shut down as opposed to operating in a climate where they can be held liable for abuse of their system by a user."
Walters noted that the retroactive provisions of the draft bill create “some significant due process concerns, since providers could be held liable for conduct that was protected by Section 230 when it actually occurred.”
“Legislation like this puts lawmakers in a difficult position, because they’re seemingly forced to take a politically unpopular stand against relief for sex trafficking victims, if they vote against it,” Walters said. “However, politicians took an oath to uphold the Constitution, including the First Amendment. Section 230 is a reflection of our nation’s commitment to free speech.”
Eric Paul Leue, the executive director of the Free Speech Coalition, upon comment, said that the the House bill “should frighten anyone who works in any sex-related industry.”
“At a time when many states are moving toward decriminalizing consensual sex work, the legislation would destroy platforms and protections that have helped make consensual sex work safer and push those workers underground,” Leue told XBIZ. “This is why even anti-trafficking groups have voiced concerns about this misguided legislation.
“We also worry about the revocation of these protections in a period in which we simultaneously see legislators and law enforcement apply the term ‘sex trafficking,’ not only to the insidious crime of human trafficking, to consensual sex work, including consensually produced adult entertainment.
“This will have no deterrent effect on actual sex trafficking, but would create huge liabilities for anyone working in or advocating for the adult industry,” Leue said. “It would have a chilling effect on sexual speech and is intended to make ISPs and search engines fearful of carrying any form of sexual content.”