EFFecting Digital Freedom

by Elliot Harmon

Don't Let Congress Destroy What We've Built

Do you run a message board, a mailing list, or a website where people can post comments?  A new bill in Congress could put you at risk of overwhelming civil and criminal liability for your users' speech.

The Stop Enabling Sex Traffickers Act (SESTA) has an important purpose - fighting sex trafficking.  Unfortunately, it goes about it in precisely the wrong way.  Trafficking is already illegal under state and federal law.  What SESTA would do is shift liability to online platforms for their users' speech.  In other words, it would create more paths for you to be sued or prosecuted if people use your message board to offer illegal services.  It would do that by weakening 47 U.S.C. § 230 (commonly known as "Section 230"), one of the most important laws protecting free expression online.

Section 230 has a funny history, one that tells us something about how Congress sometimes gets the Internet wrong.  If you're old enough to have seen Hackers on VHS, then you probably also remember the fight over the Communications Decency Act of 1996 (CDA), a law that would have put harsh restrictions on freedom of speech over the Internet.

Everyone online was protesting the CDA.  People turned their home page backgrounds black and displayed little blue ribbon banners to protest the bill.  The web was young, but we all understood that Congress' attempt to restrict Internet speech was based on a flawed idea of how the Internet works.  Or as EFF co-founder John Perry Barlow famously put it, "You do not know us, nor do you know our world."

The CDA passed, but with EFF's help, the bill's censorship provisions were gutted by the Supreme Court in 1997.  One key piece of the bill survived, though: Section 230.  Section 230 deals with intermediaries - individuals, companies, and organizations that provide a platform for others to share speech and content over the Internet.  Section 230 says that for purposes of enforcing certain laws affecting speech online, an intermediary cannot be held legally responsible for the speech of others.

Without Section 230, we wouldn't have had the explosion in social media platforms over the past 20 years.  It's likely that we also wouldn't have the nonprofit and community-led platforms that are so important to our daily lives, places like (((Wikipedia))), and the Internet Archive.  I wouldn't have gotten my first two jobs out of school.  Maybe you wouldn't have either.

If SESTA becomes law, online intermediaries would be in trouble, especially the small ones that don't have the budgets for litigation that Google and Facebook have.  It would result in most platforms becoming more restrictive in how they monitor users' speech - which, besides being expensive, would inevitably result in some legitimate voices being silenced.  It would become more difficult to get investment for your Internet startup, not to mention the listserv or message board you're just running for fun.

Pro-censorship lobbyists have been trying to gut 230 for as long as it's existed.  This time around, they're hoping to unite everyone around stopping something horrible.  And that's exactly why we have to speak up and tell Congress that this is the wrong solution.

Once every few years, geeks have to get together to explain to lawmakers how the Internet works.  For all that's changed over the past two decades, they still do not always know us and our world.  Well-meaning members of Congress can support legislation that would tear apart our online communities.

Please consider writing or calling your members of Congress.  If online communities are important to how you work, learn, and socialize, tell them that.  If your employment or your passion project relies on Section 230, tell them that too.  They need to hear it from you.

For more information, visit stopsesta.org.