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Content Providers vs. Content Hosts: Prosecuting Bad Actors Without the Backpage Bill

· August 4, 2017

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In yesterday’s post I described ongoing efforts to amend Section 230, the statute which protects Internet intermediaries from being penalized for the misdeeds of Internet users.  A question being asked is, why is there interest in allowing states to regulate Internet content?

One answer is the website Backpage.com.  Indeed, sponsors of the bill have been so explicit that the amendment is intended to target Backpage that many simply refer to the legislation as the “Backpage bill.”  Backpage is a provider of Internet classifieds, whose sites include a “dating” section, and until January, an “adult services” section, in which a Senate investigation found human traffickers had solicited business.  

Citing Section 230, Backpage has defeated some state and civil claims, however.  These claims sought to hold the site responsible solely for the passive role it had in providing the location where these illicit transactions were published.  New evidence, however — which has yet to be brought before any court — suggests the site had actually developed some ads.  That would be another matter (more on that below), to which Section 230 does not apply.

Section 230 Doesn’t Block Enforcement of Federal Criminal Law

Federal criminal charges are also another matter.  Section 230(e) makes clear the provision does not apply to federal criminal law.  As noted here, nothing prevents the Justice Department from bringing a case under existing federal criminal law.  In fact, the 2015 SAVE Act was also characterized as “the Backpage bill” and was designed to strengthen Federal prosecutor’s case, but has yet to be used against the company.

That may change in the wake of a report by the Washington Post last month claiming that the website was in fact was affirmatively creating sex-related advertisements to cultivate illegal business.  

Senator Portman, an initial cosponsor of this latest Backpage bill, certainly seems to believe so. Portman chairs the Senate Permanent Subcommittee on Investigations, which in January released a report that reached a similar conclusion about Backpage.  He and other Senators wrote to the Justice Department a few weeks ago, stating that there is “enough evidence against Backpage to warrant criminal review.”  There have already been reports that a federal grand jury in Phoenix is investigating the company.

The leads to a question raised by Prof. Goldman earlier this week: why are Senators pursuing a second Backpage bill when they already think a case can be made under the last Backpage bill?

Section 230 Doesn’t Apply to Content Providers

The Senate report and Post article noted above bear on Section 230 for another reason: the safe harbor does not apply to content providers, only companies that merely host content.  A site that creates illegal content receives no protection.  One conspicuous example of this is the Roommates.com case, a renter-oriented website whose menu structure prompted users to specify discriminatory housing preferences (e.g., “I’m looking for a [straight] roommate” or “I will not live with children”).  

There, a federal appellate court explained that

“a website operator who edits user-created content . . . retains his immunity for any illegality in the user-created content. . . . However, a website operator who edits in a manner that contributes to the alleged illegality . . . is directly involved in the alleged illegality and thus not immune.”

By providing prompts that would yield discriminatory answers, Roommates.com was found to violate federal housing laws.  It was no longer hosting the content, courts concluded, but creating it.  

Liability for Online Content Providers like Backpage

In this context, a website that behaves as the Washington Post report alleges Backpage did could lose Section 230 protection, since it was no longer an intermediary, but rather an author of the content.

Earlier this week, Missouri Attorney General Josh Hawley, made this very point, moving to dismiss Backpage’s invocation of Section 230 by arguing it was a content provider.  This motion relies on the evidence discussed in the Post article and Senate report.  Victims seeking restitution against Backpage could similarly rely on this new evidence in civil cases (as well as other evidence that may be unearthed by the federal grand jury).  Because none of these actions would seek to hold Backpage liable for its role as a host, but instead as a creator of the content, Section 230 would not apply.  

Ultimately, Section 230 represents the principle of “don’t shoot the messenger.”  But when the messenger starts authoring the message, the safe harbor no longer applies.  

Undermining that safe harbor with another “Backpage bill” could deter legitimate Internet services from policing for abuse, which is one reason so many constituencies, ranging from the ACLU to the Charles Koch Institute, on the right and left, have expressed concern.  Congress should give law enforcement an opportunity to make a case, and allow state and civil actions based on new evidence to proceed.

Innovation

New technologies are constantly emerging that promise to change our lives for the better. These disruptive technologies give us an increase in choice, make technologies more accessible, make things more affordable, and give consumers a voice. And the pace of innovation has only quickened in recent years, as the Internet has enabled a wave of new, inter-connected devices that have benefited consumers around the world, seemingly in all aspects of their lives. Preserving an innovation-friendly market is, therefore, tantamount not only to businesses but society at large.