In 1998, a German court convicted CompuServe executive Felix Somm for assisting with the distribution of child pornography via the CompuServe network. In 2010, an Italian court convicted three Google executives (chief lawyer David Drummond, CFO George Reyes and privacy lawyer Peter Fleischer) for criminal privacy violations because a user posted a YouTube video that depicted bullying of an autistic boy.
These convictions eventually were overturned on appeal, but only after years of incredibly expensive litigation, and after the defendants coped for years with the daily fear that they eventually might be jailed. The lesson from these and other criminal prosecutions remains clear: if you want to run a European Internet company dealing with user-generated content (UGC), be prepared to put your personal liberty at stake.
In the United States, we rarely contemplate the possibility that entrepreneurs and managers could face criminal liability for running a UGC website. Prosecutions like these couldn’t happen here…right?
Think again. If the State Attorneys General (AGs) get their way, such criminal prosecutions could become a real threat.
Some background: In 1996, Congress enacted 47 U.S.C. 230 (Section 230), which says that websites aren’t liable for UGC or other third party content--even if the website ignores takedown notices, and even if the website has exercised editorial control over the UGC. Section 230 is a globally unique policy solution; no other country has laws so protective of UGC website operators (for example, contrast the United Kingdom’s recently enacted Defamation Act). As a result, Section 230 provides the foundation of our burgeoning domestic UGC industry, and it gives the United States global competitive advantages both in launching and operating UGC websites and in the social benefits these sites provide.
Section 230 does not apply to cases involving intellectual property, federal criminal prosecutions, and violations of the Electronic Communications Privacy Act or analogous state laws. Otherwise, if the plaintiff's claim doesn't fit into one of these three exceptions, courts have interpreted Section 230 quite expansively, and usually the courts reject direct and indirect attempts to hold websites liable for UGC.
Section 230 preempts all state laws that say, or could be interpreted to hold, that websites are liable for third party content are ineffective (unless they fit one of the three statutory exceptions). This includes any prosecutions under state or local criminal law where the crime in predicated on a website’s liability for UGC.
At a meeting of the National Association of Attorneys’ General (NAAG) last week in Boston, we learned that some state AGs are drafting a letter that will ask Congress to exclude state criminal prosecutions from Section 230. Textually, the change to Section 230 would be quite modest (it would only add two words), but its effect would be profound. This amendment would allow state attorneys general to prosecute Internet companies, including potentially their executives, for violations of state criminal law for their online publication of third party content.
Why do the state AGs want to amend Section 230? We’ll have to wait to see what their letter says, but I have two complementary hypotheses.
First, Section 230 generally restricts the enforcement powers of the state attorneys’ general. Thus, where a state AG believes in his/her wisdom that state residents are suffering a problem, Section 230 may preempt the state AG's legal authority to act. What prosecutor wouldn’t want more legal flexibility to fix the problems they see?
Second, I suspect the proposed Section 230 amendment is just the latest iteration of the state AGs’ multi-year crusade against online prostitution ads. For years, state AGs have been trying to eradicate online ads advertising prostitution—without any meaningful legal success due to Section 230.
For years, the state AGs tried to shut down Craigslist's “Erotic Services” category, which included some ads for non-illegal services but also contained prostitution ads. Their coercive tactics included threatening to criminally prosecute Craigslist's managers, a threat that would take on new meaning if Congress honors the AGs' amendment request. It didn’t matter that the prostitution ads provided a roadmap for the vice squad to find and prosecute the advertisers; or that we have numerous examples where police actually found and convicted prostitutes and johns using the ads. Instead, the state AGs wanted Craigslist to shut down the category and to self-police its listings to screen out prostitution ads. However, because the ads constituted UGC to Craigslist, Section 230 protects Craigslist for publishing those ads.
Nevertheless, Craigslist took several steps to address the state AGs' concerns, including renaming its category to “Adult Services” and requiring a nominal payment as a way of authenticating the advertisers (which eventually infuriated the AGs more because now Craigslist was making money from the ads). Eventually, after relentless pressure from the state AGs and others, Craigslist gave up and angrily shut down its Adults Services category.
Craigslist's exit from the market solved the problem only superficially. As anticipated, the prostitution ads quickly migrated to other online venues, including Backpage.com. In response, state AGs trained their guns on Backpage.com. In addition, several state legislatures passed laws designed to overcome Section 230 and hold Backpage accountable for online prostitution ads. The new laws also failed; the laws in Washington and Tennessee have been struck down on Section 230 grounds.
So it’s easy to understand the state AGs’ frustrations. They are obsessed, perhaps irrationally so, with online prostitution ads. Yet, having tried both direct legal action and state legislative amendments, Section 230 is still thwarting their multi-year, multi-pronged efforts to shut down publication venues for online prostitution ads. You can almost imagine the state AGs pleading to Congress: we’ve tried everything we can do, now it’s your turn.
Unfortunately, the state AGs’ forthcoming proposal is a terrible idea. Tomorrow’s post (now online) will explain why.
