Freedom Under Fire – The Unlikely Law That is Saving the Internet

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The Communications Decency Act, or CDA, is a bill that dates all the way back to 1995. This act has famously, or infamously, been labeled as the “Great Internet Sex Panic Act of 1995.” It was the first attempt that the United States Federal Government made to regulate indecency on the Internet. A goal they had already accomplished with radio and television through the Federal Communications Commission (FCC).

The FCC cracked down on broadcasts by imposing content bans for times of the day in which kids were, supposedly, more likely to be watching or listening. The CDA sought to impose similar regulations on the internet as it was beginning to be commercialized in 1995. The Act sought to regulate “indecent” or pornographic material by criminalizing its use by anyone under the age of 18 and by limiting speech that was deemed to be “obscene” or “indecent” to individuals under the age of 18.

Of course, this kind of non-specific language raised quite a few concerns among those in the civil liberties arena. Free speech advocates worried that many things, including reading or writing about already in-print novels, saying words deemed to be “dirty,” or even accessing or providing medical information could potentially qualify as criminal action. The American Civil Liberties Union filed suit, and in the landmark case American Civil Liberties Union v. Reno, the Supreme Court struck down the anti-indecency clauses in the CDA. This left the portion of the Act known as Section 230, and effectively turned an attempt at censorship into a protection of protection of freedom.

Section 230 of the Communications Decency Act, originally its own bill, was an addition to the CDA by the US House of Representatives. Section 230 includes protection for internet service providers (ISPs) and website owners by stating “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This means that if someone were to go on a website as a third party user and engage in illicit activity, the website’s owner would not be held at fault for that occurrence. This protection for ISPs and website administrators has been hailed as a bulwark for internet freedom.

This piece of legislation in the past has protected companies like Facebook and Twitter and allows ISPs to provide unfettered access to the internet without a requirement for censorship. Unfortunately, the future of this freedom has become uncertain as attacks and challenges become more frequent.

In July of 2013, Attorneys General of 47 states petitioned Congress to do away with the immunity offered by Section 230. The ACLU reacted to the petition, arguing that because of Section 230, “[a] website can provide a platform for all speech without worrying that if one of its online users posts something stupid, critical, defamatory, or unlawful, the website itself can be held responsible.” The ACLU further stated that if Section 230 were removed that “it wouldn’t take long for the vibrant culture of free speech to disappear from the web.”

The Attorneys General were back at it again in 2015, when 40 Attorneys General signed in support of an Amici Curiae (friend of the court) brief in favor of Mississippi Attorney General Jim Hood’s case against Google. The case, Google, Inc. v. Jim Hood, is a suit filed against Hood by Google for issuing a subpoena based on allegations that Google is responsible for the ability to find copyrighted materials through their internet search engine. Google stated, “The Attorney General may prefer a pre-filtered Internet—but the Constitution and Congress have denied him the authority to mandate it.” A federal judge blocked the subpoena, an action which eventually led to a dismissal agreement between Hood and Google.

In 2016, Yelp fought a court ruling in California that required the company to remove negative reviews after a law firm sued the company. Critics of the ruling worried that it would set a precedent of holding internet review services liable for customer reviews. Others worried that it would result in businesses pursuing legal action against the reviewers themselves.

Section 230 was directly contradicted last year when the case known as Jane Doe No.14 v. Internet Brands, Inc. was decided in favor of the plaintiff. In the case, Jane Doe, a model on the site Model Mayhem, alleged that Internet Brands, Inc. (the parent company) had knowledge that users were engaging in criminal activity on the site. Specifically, two users on the site were targeting women and sexually violating them. In the court’s decision, it was determined that the website could, in fact, be held responsible for not warning a user of any potential harm. While in this specific case, it was discovered that Internet Brands had direct knowledge of a long history (5 years) of criminal activity by these users, there is concern that the ruling potentially sets a precedent of holding website owners responsible for communication between third-party users on its servers. Free speech advocates and civil liberties groups will be watching developments in this case very closely.

Beyond individual criminal activity, internet censorship has turned into an issue with important national security implications. Groups like Wikileaks and Anonymous and government whistleblowers like Edward Snowden have regularly used the internet to distribute potentially sensitive information about government activities and political activity, information that would be a high priority for censorship.

The Communications Decency Act, and specifically Section 230, have held up against recent attacks, but these attacks have become more frequent. Under the current precedent, websites like Facebook, Google, and Yelp are free to allow their users to interact as they please, with the responsibility for their actions resting solely with the individuals. Free speech advocates worry that, if Section 230 were repealed, the risk of liability could turn these internet giants into a third-party Big Brother, censoring and reporting users’ activities based on the whims of politicians and lobbyists.