It's Valentine's Day but instead of spending the whole day staring into the eyes of your loved one(s) maybe take a moment to learn about section 230 of the Communications Decency Act: a trash piece of legislation that gives near total immunity to content-hosting websites, allowing for widespread dissemination of revenge porn while simultaneously endangering sex workers from sea to shining sea. How could one measly statute do so much at once?? Why through the brazenly obtuse magic of the United States Congress, of course!
CDA 230 was originally passed in 1996, a magical time when the internet was filled with rudimentary porn and book-selling nerds (here's lookin at you, Bezos). The World Wide Web was seen as a place for free market innovation and unobstructed creativity and community building, and memes were just a twinkle in the nascent millennial's eye. The Act was meant to protect free speech and was passed in response to a number of court cases, the most notable of which was Stratton Oakmont, Inc. v. Prodigy Services Co.
In that 1995 case, the plaintiffs sued Prodigy, the owner and operator of an online forum called "MoneyTalk," because a user on the forum had accused Stratton Oakmont's officers of committing criminal fraud. The court held that Prodigy was a "publisher" of the statements made by users in the MoneyTalk forum and thus could be held liable for plaintiff's libel claims. If Stratton Oakmont is ringing a bell for you, that's because it's the company founded by Jordan Belfort, aka The Wolf of Wall Street. He used Stratton Oakmont to defraud countless investors and was subsequently convicted of CRIMINAL FRAUD in 1999.
So you can see how not having protections in place for the operators of websites like MoneyTalk, where users can post content at will, could lead to serious curbs on free speech. We'd all like to live in a society where anonymous users online can warn us about the Jordan Belforts of the world. This is where CDA 230 comes in.
CDA 230 says, in relevant part:
"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."
So if you're the owner of a forum and someone posts libelous content on your site, you are immune from any legal action related to that content. Or if you're Mark Zuckerberg and the Russians use your forum to foment conflict amongst the American people, you're not at fault (???). Or if you own PornHub and someone posts revenge porn (sexual content posted online nonconsensually) on your site, then you can't be held legally responsible for that content (!!!). So you can see how the solution to the Jordan Belfort problem created its own slew of potentially history-altering issues.
In the years after CDA 230 passed, a number of lawsuits were filed against major websites for the content that users created on their platforms. Many of those lawsuits were against websites like Backpage, a Craigslist-like personals forum, for allowing a proliferation of sex trafficking to happen on their site. The lawsuits all failed under CDA 230 as judges pretty unilaterally took an extremely broad reading of the statute and deferred to Congress' will that the internet be a bastion of free speech, no matter what.
This, however, really pissed off an extremely influential political voting bloc of the US population: Moms. Moms HATED CDA 230. (So did dads but, let's be real, moms did all the organizing.) It posed a threat to children and decency. A documentary was made. Lobbying proliferated. By 2018 the unrest had created enough of a movement that Congress handed Drumpf a bill, which he giddily signed into law with his very tiny hands, to reform CDA 230 once and for all.
Alternately known as the Fight Online Sex Trafficking Act (FOSTA) in the House or the Stop Enabling Sex Traffickers Act (SESTA) in the Senate, the act is now generally known as a piling heap of garbage doubling as a bandaid. It reads, in relevant part:
"Whoever . . . owns, manages, or operates an interactive computer service with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both."
and
"Whoever . . . owns, manages, or operates an interactive computer service with the intent to promote or facilitate the prostitution of another person and (1) promotes or facilitates the prostitution of 5 or more persons; or (2) acts in reckless disregard of the fact that such conduct contributed to sex trafficking, shall be fined under this title, imprisoned for not more than 25 years, or both."Basically, every website that allows for user-created content is still immune from liability but this act carves out a specific exception to that blanket immunity. In doing this, the act conflated "prostitution" with "sex trafficking" and made websites liable for all of it, even though one can be a fully consensual avenue for a lucrative business and the other is a traumatic, nonconsensual sex crime. This, however, tracks with our country's general rigid, black-and-white view on sex: it's all explicit and dirty and should all be censored and rated R, whether it's a violent rape scene or a healthy consensual exchange between adults. It's all bad and you're dirty for thinking about it right now. And if you make money for it we want to shame you but also protect you from yourself, true to our illustrious puritanical underpinnings.
The immediate response to the bill was the complete shuttering of Backpage, a forum used pretty much exclusively for personal ads. Many of those ads were placed by sex workers as a means of connecting with their clients. Many were for actual sex trafficking victims. Since the act didn't differentiate between the two, and Backpage was a small company without the revenue needed for large-scale monitoring of its posts, the whole thing shut down in anticipation of FOSTA/SESTA. Craigslist completely removed its personal ads, another avenue through which consensual sex workers found clients, citing FOSTA/SESTA as the source of too much costly liability to justify keeping the personal section open.
So here we are, less than a year after the passage of FOSTA/SESTA - did it work? Is America safe from sex trafficking? We both know that's a big fat NOPE. Without access to Backpage and Craigslist as a means to find and screen potential clients, many sex workers have reverted to more dangerous means of finding work, which usually includes working the streets where there is no safety of a computer and background processing software to protect from potentially violent clients. Sex workers died or went missing. The entire sex worker community (largely fostered by the advent of the internet) was shook.
And reports show that instances of sex trafficking have only increased, at upwards of 170% by some estimates. It's almost like passing regulations that push illegal activity back underground makes it harder to find and prevent??
Alright so clearly I'm pissed, moms are still pissed, sex workers are definitely pissed, and people are still being sex trafficked and harassed online via revenge porn. CDA 230 is not working. FOSTA/SESTA is not working. I'm no legislator and I don't have the answers, but I think a good place to start would be [A] getting legislators at the table who aren't all old white men; [B] separating consensual sex work from sex trafficking, legislatively and socially; and [C] listening to sex workers, bringing them into lawmaking conversations, and creating separate legislation to ensure that sex workers are still able to use the internet for what 1996 America wanted it to be: a free and open space that fosters communication and community building. I know that's a big ask, especially for this Congress, but someone's got to do the big dreaming despite the trash heap that is the legislative process in America, and I'm here for it.
Think I'm wrong? Feel free to drag me in the comments below. Or, better yet, write a rebuttal article and if it's any good I'll publish it. Email proselawblog@gmail.com.
Have any burning legal questions about pop culture or current events you want me to analyze? Pop it in the comments or slide into my DMs over on Instagram or Twitter.
sources and further reading (and listening):
{1} Communications Decency Act § 230 (starts at bottom of page 82).
{2} Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (official title of the combined FOSTA/SESTA legislation).
{3} Aja Romano, A New Law Intended to Curb Sex Trafficking Threatens the Internet as We Know It, VOX (Jul. 2, 2018).
{4} What Makes an Effective Revenge Porn Law, C.A. Goldberg
{5} Emily McCombs, 'This Bill is Killing Us': 9 Sex Workers on Their Lives in the Wake of FOSTA, HuffPost (May 11, 2018).
{6} Strange Bedfellows Podcast and Elle Stanger's work generally, over on Instagram at @stripperwriter.
{7} Molly Smith, Revolting Prostitutes: The Fight for Sex Workers' Rights (2018).
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