In Part I of this series on the Department of Justice’s February 19 workshop, Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda), we covered why Section 230 is important, how it works, and how panelists proposed to amend it.
Here, Part II covers how Section 230 intersects with criminal law, especially around child sexual abuse material (CSAM). Part III will ask what’s really driving DOJ, and explore how to get tough on CSAM without amending Section 230 or banning encryption.
Section 230 Has Never Stopped Enforcement of Most Criminal Laws
The second panel in particular focused on harms that either already are covered by federal criminal law (like CSAM) or that arguably should be (like revenge porn). So it’s worth reiterating two things up front:
Section 230’s protections for websites have always excluded federal criminal law
Section 230 has never stopped state or local prosecutors from enforcing state criminal laws against the users responsible for harmful conduct online.
Plaintiff’s lawyer Carrie Goldberg repeatedly mentioned Herrick v. Grindr. Her client Matthew Herrick sued Grindr for failing to stop his ex-boyfriend from repeatedly creating fake Grindr profiles of Herrick, each claiming he had a rape fantasy, and using these profiles to send over 1200 men to attempt to rape him. Both state criminal law and federal harassment law already cover such conduct. In fact, contrary to Goldberg’s claims that law enforcement did nothing to help her client, Herrick’s ex was arrested in 2017 and charged with stalking, criminal impersonation, making a false police report, and disobeying a court order.
On the same panel, University of Miami Law Prof. Mary Anne Franks acknowledged that Section 230 didn’t stop federal prosecutors from charging executives of Backpage.com. Indeed, the former CEO plead guilty literally one day after President Trump signed FOSTA-SESTA — the first legislation to amend Section 230 since the law was enacted in 1996. Prof. Franks claimed that the only reason other sites haven’t rushed to fill the gap left by Backpage (in hosting ads for child sex trafficking) was the the deterrence effect of the new law.
But since FOSTA-SESTA was enacted nearly two years ago, not a single prosecution has been brought under the new law. By contrast, the DOJ managed to actually shut down Backpage.com and its former CEO, Carl Ferrer. Ferrer is now awaiting sentencing and could face up to five years in prison plus a $250,000 fine. (You can read his plea bargain if you’re interested.) Meanwhile, the two other arrested Backpage executives are continuing to fight their legal case, in which there is increasing evidence that the Justice Department is trying to railroad them into a guilty plea by misrepresenting their efforts to help stop trafficking as evidence they were helping to promote it. It’s a messy case, but with one criminal plea under pre-existing law and zero prosecutions for the new law, it’s hard to argue that the new law accounts for all of the deterrence value Franks ascribes to it.
The Role of States and State Criminal Law
Nebraska Attorney General Doug Peterson said state AGs wanted only one tiny tweak to Section 230: adding state criminal law to the list of exceptions to Section 230’s protections. (The National Association of Attorneys General has been pushing this idea for nearly a decade). It may sound moderate: after all, since 230 doesn’t bar enforcement of federal criminal law, why stop the application of state criminal law? But, as Prof. Goldman noted, there’s a world of difference between the two.
The AGs’ proposal would create four distinct problems:
Section 230 has ensured that we have a consistent national approach to using criminal law to police how websites and Internet services operate. But if website operators could be charged under any state or local law, you’d have a crazy-quilt of inconsistent state laws. Every state and locality in America could regulate the entire Internet.
Most scholars agree that federal criminal law has become far too broad, but compared to any one state’s body of criminal law, it’s narrow and tailored. State criminal law includes an almost endless array of offenses, from panhandling to disturbing the peace, etc. Few people would argue that such laws should be applied on the Internet — yet, if Section 230 were expanded to allow prosecution of all state laws, creative prosecutors could charge just about any website with just about anything.
In particular, half the states in the country still criminalize defamation, so opening the door to the enforcement of state criminal law means making websites liable for defamation committed by users — the thing Section 230 was most specifically intended to prevent. Yes, criminal cases involve a higher burden of proof but also stiffer penalties. And if websites face criminal penalties whenever users can complain about other users’ speech, the chilling effects would be enormous. Any potentially sensitive or objectionable speech would be censored before anyone even complains. Politicians would be in a particularly privileged position, able to silence their critics simply by threatening to have criminal charges filed. Think Trump on steroids — for every politician in America (and anyone else who could get prosecutors to file a criminal complaint, or at least threaten to do so).
These laws weren’t written for the Internet and don’t reflect the difficult balancing that would have to be done to answer the critical questions: exactly when would a website be responsible for each of the potentially billions of pieces of content it hosts? What kind of knowledge is required? The example of Italian prosecutors charging a Google executive with criminal cyberbullying simply because Google was too slow to take down a video of students taunting an autistic classmate illustrates just how high the stakes could be (never mind that the charges were ultimately overturned by the Italian Supreme Court).
There’s no need to open this can of worms. If the problem is that we don’t have a law for something like revenge porn, we should have that debate — but in Congress, not in every state legislature or town hall. A new federal criminal law could be enforced without amending Section 230.
But if the problem is that federal law enforcement lacks the resources to enforce existing criminal law — again, this is absolutely true for CSAM — the obvious answer would be to enlist state prosecutors in the fight. In fact, the U.S. Attorney General can already designate state prosecutors as “special attorneys” under 18 U.S.C. § 543. Section 230 wouldn’t stop them from prosecuting websites because Section 230(e)(1) preserves the enforceability of federal criminal law regardless of who’s doing the enforcing. The fact that you’ve almost certainly never heard of this provision ought to make clear that this has never really been about getting state prosecutors more engaged — and make you question the state AG’s motives. (The same goes for formalizing this process by amending specific federal criminal laws to allow state prosecutors to enforce them.)
We proposed using Section 543 in the SESTA-FOSTA debate back in 2017 but the idea was dismissed out of hand. As a practical matter, it would require state prosecutors to operate in federal court — and thus, in many cases, to learn new practice rules. But that can’t possibly be what’s stopping them from getting involved in CSAM cases.
In Part III, we’ll ask what’s really driving DOJ here. Hint: it’s not really about “protecting the children.”
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