Fordham Law


US states' attorneys general to take aim at Internet 'safe harbor' law

Joel Reidenberg in Tech World, June 18, 2013

Media Source

Frustrated by their difficulty prosecuting cases involving online content that is illegal or damaging to individuals, a group of state attorneys general are taking action.

They are circulating a draft letter that they plan to send to the U.S. Congress, pressing for an amendment to the federal law that currently broadly protects Internet publishers and service providers from responsibility for third-party content on their sites.

The attorneys general are taking aim at Section 230 -- also known as the "Safe Harbor" provision -- of the 1996 Communications Decency Act, of which other elements have already been struck down as violating constitutional protections for freedom of speech.

The law protects publishers and site operators from being held liable for content written by third parties, except in cases involving federal criminal law, intellectual property law and electronic communications privacy law. So, while the U.S. Department of Justice has been able to prosecute cases where federal crimes are alleged, if state-level criminal laws are at issue, state attorneys general have not been able to hold defendants liable for online content.

The letter to Congress requests the insertion of just two words, "or state," where the statute exempts cases involving federal criminal law, explained Attorney General Marty Jackley of South Dakota, on Tuesday at the summer meeting of the National Association of Attorneys General (NAAG) in Boston. Jackley has led this effort along with Bob Ferguson of Washington and Chris Koster of Missouri. The letter is being circulated among NAAG members and could be sent to Congress as soon as July 8, he said.

Such an amendment would put state prosecutors on the same footing as U.S. attorneys, Jackley said, and correct what he called the unintended consequence of Section 230 in that "you've essentially given these guys immunity" when state criminal laws are broken.

There are not many ways to hold content providers liable under the statute, according to Eric Goldman, associate professor at Santa Clara University School of Law, who participated in a panel on Section 230 at the NAAG meeting. But in an interview later, he predicted "a big battle" as the state attorneys press the issue. "Section 230 has a lot of supporters," he said, pointing to the major Internet players who are teamed with free speech advocates and will defend the status quo. "The opposition is not well organized," he added, but acknowledged that the state attorneys general "have some political muscle."

The Internet business, now dominated by giant corporations such as Google and Facebook, arguably no longer needs the protection that the then-nascent online industry won some 18 years ago.

"I'm not a fan of Section 230," said panelist Joel Reidenberg, professor at Fordham University School of Law and the founding academic director of its Center on Law and Information Policy. "230 was enacted to help support small Internet services," he said. "Now, we're seeing real harm to real people. Section 230 makes redress for victims quite difficult."

The position taken by the large Internet players is that market forces and self-regulation, rather than laws, offer the best protection against abuses, and that view was represented by Christopher Wolf, a partner at Washington, D.C., law firm Hogan Lovells and co-chairman of the industry-funded Future Privacy Forum. Limiting Section 230 immunity "would harm freedom of expression," he said, citing the Center for Democracy and Technology's position on the law.

One avenue prosecutors may seek to explore is the statute's vague definition of an intermediary versus a content provider, Reidenberg suggested. During discussion after the panel presentations, Mississippi Attorney General Jim Hood pressed that angle, asking the panelists what acts by a site operator might be sufficient to categorize it as a content provider, not simply an intermediary.

Hood zeroed in on autocomplete in particular, saying, "We know they manipulate the autocomplete feature." He is concerned about search engines, particularly Google, where for example a user entering "prescription drugs online" is given "prescription drugs online without a prescription" as an autocomplete option.

Hood's office has been investigating the role Google search and advertising plays in facilitating illegal purchases of prescription drugs and pirated intellectual property, activities he elaborated on for the NAAG group later on Tuesday. While television stations and newspapers would be easily prosecutable for such behavior, Section 230 protects online companies such as Google from legal consequences, according to Hood.

The statute was designed as a shield, Hood said, but in the face of challenges to the role it plays in drug sales and piracy, he sees Google using Section 230 "as a sword."