Q: How did we get here? Could the Communications Decency Act have been drafted differently to avoid this problem?

It is very important to understand the history of the CDA and that puts in context the SESTA proposal as a mere clarification of what the CDA was meant to do in 1996 when drafted, and how it should be clarified in light of technologies and crimes that have emerged since 1996.  At the time of the CDA the internet was barely beginning, the crime of human trafficking was not recognized in the law, and the extreme growth of sexual exploitation of children online had yet to be realized.

The CDA was enacted in 1996 when the Internet was in its infancy.  It was drafted in response to at least one case, Oakmont v. Prodigy.[1]  In that case, Prodigy used its software to filter profanity on its platforms, including a bulletin board.  However, a security firm sued Prodigy when users put negative comments on Prodigy’s bulletin board about that firm.  In a twist of fate, Prodigy lost the lawsuit in part because it had taken efforts to screen out material, but had been incomplete in doing so.

This case influenced Congress to act, as this decision seemed to punish a Good Samaritan who was trying to self-regulate.  That is why the legislation  is called the Communications Decency Act.  Its purpose was to protect people from sexually explicit material online and encourage companies to “take steps to screen indecent and offensive material for their customers.”[2]  It was not encouraging companies to engage in criminal activity, but quite the opposite.  Therefore, the purpose of the CDA was to encourage a robust Internet while protecting service providers for their actions to restrict access to explicit content.  It did so by declaring that service providers should not be treated like publishers for content on their platforms provided by third parties.  §230(c)(1).  It also provided broad protection for Good Samaritans who restrict access to sexually explicit material. §230(c)(2).

However, since 1996 this law has been interpreted far more broadly than intended or than the words of the statute suggest.  Courts have tried to navigate the meaning of the CDA today.  But the world today is very different from 1996.  First, the Internet is no longer in its infancy.  It has grown and is robust and thriving.  However, crime and exploitation are also thriving on the Internet in ways unforeseen in 1996.  Secondly, the drafters of the CDA could not have anticipated the role of the Internet in human trafficking which was not even recognized as a crime until 2000.  Some courts, at the urging of Backpage.com and other tech companies and their representatives, have advocated that the CDA provide blanket immunity for their actions because they are internet companies.  They argue that the CDA affords service providers immunity because Congress wanted a robust Internet.  Some courts have read the law to offer such a broad protection effectively isolating service providers from liability simply because they are service providers.  This is notwithstanding the fact that were these same actions committed by brick and mortar businesses, no immunity would be considered at all.  This has prevented states from pursuing criminal charges or victims from suing service providers civilly.

Moreover, the law now recognizes a new series of crimes: human trafficking.  The Trafficking Victims Protection Act was not passed until 2000.  As a result, there is no guidance in the CDA on how to manage the CDA with the TVPA.  So courts have tried to reconcile the immunity provision for Good Samaritans of the CDA with the intent of Congress to hold traffickers and those who enter into a joint enterprise with human traffickers liable in the TVPA. Some courts have struggled with this issue and resolved the conflict in favor of immunity for online entities.  Many of these courts have expressed concern that they could not allow trafficking victims’ claims to proceed and asked Congress for clarification.[3]  For example, a California Court explicitly  stated, “until Congress sees fit to amend the immunity law, the borad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.”[4]

Therefore, it makes perfect sense for Congress to clarify this tension.  The Senate bill does so in some very simple ways within the four page bill.  First,  it adds a line to the “Findings” section of the CDA making the non-controversial clarification that “§230 was never intended to provide legal protection to websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”  Second, it adds to the “Policy” section of the CDA the similarly non-controversial statement that one of the policies of the United States  is “to ensure vigorous enforcement of criminal and civil law relating to sex trafficking.”  Again, this is not a controversial statement.  Third, it leaves the Good Samaritan protections in place.   Finally, it includes state sex trafficking and the enforcement of state sex trafficking laws as laws unaffected by the CDA, as well as clarifies what it means to participate in a human trafficking venture.  These steps are narrow but critical to clarifying confusion experienced by courts trying to reconcile the express intent of Congress in the outdated CDA and current TVPA.

Read Part 1 and Part 2 here. 

By Mary G. Leary, Professor of Law, Catholic University of America, Shea Rhodes, Director of Villanova Law School’s Institute to Address Commercial Exploitation, Chad Flanders, Professor of Criminal Law and Constitutional Law Scholar, St. Louis University, and Audrey Rogers, Professor of Criminal Law and the Internet, Pace University.

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[1] 1995 WL 323710 (NY Sup. Ct. 1995).

[2] 141 Cong. Rec. H8470

[3] E.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 29 (1^st Cir. 2016); California v. Carl Ferrer, Michael Lacey, and James Larkin, No. 16FEO24013, Ca. Super. Ct. (August 23, 2017).

[4] Ferrer, No. 16FEO24013 at 18.