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August 6, 2013 11:55 AM   Subscribe

New Proposal Could Singlehandedly Cripple Free Speech Online
47 state attorneys general have sent a letter asking Congress to amend Section 230 of the Communications Decency Act. The EFF responds.
posted by cjorgensen (108 comments total) 23 users marked this as a favorite
 
And predictably, the letter almost literally begins with "Won't somebody think about the children??!!"
posted by Atom Eyes at 12:03 PM on August 6, 2013 [12 favorites]


Oh, for fu
posted by Etrigan at 12:09 PM on August 6, 2013 [7 favorites]


It's framed as solely about the children. It's as if the only thing these brave and noble AGs believe the internet is used for is the child sex trade.
posted by filthy light thief at 12:11 PM on August 6, 2013 [7 favorites]


Clearly, the optimal solution is to rid the world of children. Let the current crop grow, stop allowing them to be generated and born ... in 20 or so years the problem solves itself.
posted by tilde at 12:11 PM on August 6, 2013 [32 favorites]


If this passed, would this also mean the end of all social network sites?
posted by rustcrumb at 12:12 PM on August 6, 2013 [1 favorite]


It doesn't mean the end of anything. It means that websites can be held liable for any content they host. But many sites would close because such liability would be too costly to continue to operate.
posted by filthy light thief at 12:13 PM on August 6, 2013 [3 favorites]


It's not civil liability: it's criminal liability.
posted by mr_roboto at 12:13 PM on August 6, 2013 [5 favorites]


At the very least, it might mean moderated tweets and FB status updates, which kind of undermines the whole thrust of the thing...
posted by saulgoodman at 12:14 PM on August 6, 2013 [1 favorite]


Amazingly to me, Ken Cuccinelli isn't on the list. As a Virginia resident, maybe election day this year won't be so terrible.

Just kidding, he's still awful.
posted by dsfan at 12:14 PM on August 6, 2013 [7 favorites]


If this passed, would this also mean the end of all social network sites?

Yes. If every site becomes liable for *everything* published on it, there's no way in hell a social network site survives.

The reason for Section 320 was that, in the early days of the Internet, suing the site for something someone else wrote on it was actually happening, and it was huge chilling effect. Congress at the time realized it, which is why they passed that into law.

It's not civil liability: it's criminal liability.

It's both civil and criminal liability. Note that this doesn't protect the person actually writing the text, it protects the site that happened to host it because they have a comment or submission section.

At the very least, it might mean moderated tweets and FB status updates

Not enough manpower in the world -- and all it takes is one mistake to leave you liable.
posted by eriko at 12:16 PM on August 6, 2013 [6 favorites]


Can we just fall into totalitarianism already, and get it over with? This gradual, teasing, death-by-a-thousand-cuts slide is getting tiresome. The sooner we deal with it, the sooner we can get back to democracy.
posted by Thorzdad at 12:18 PM on August 6, 2013 [37 favorites]


If you tilt your screen while you look at the signatures you can see whose intern doesn't know how to use a scanner. I'm looking at you, Joseph Foster.
posted by theodolite at 12:19 PM on August 6, 2013 [6 favorites]


47 AGs versus technology companies and their lobbying budgets. It's worrisome, but I know which side I would bet on.
posted by jscalzi at 12:19 PM on August 6, 2013 [13 favorites]


Imagine trying to keep in compliance with 50 different state laws with your personal blog. Now imagine trying to keep user generated content in compliance with 50 state laws.

I'd say it'd be impossible. I would also say the cost of defending yourself against constant "violations" because there are people like Ken Cuccinelli in the world that want to outlaw things like oral sex would make it prohibitive to run any sites.
posted by cjorgensen at 12:20 PM on August 6, 2013 [4 favorites]


Yeah it just seems like the burden of enforcement it would place on someone like Facebook or Google+ would be unmanageable. Youtube claims that it receives 100 hours of video per minute. You'd need at least 6000 people working around the clock just to put an eyeball on every frame...
posted by rustcrumb at 12:21 PM on August 6, 2013


47 AGs versus technology companies and their lobbying budgets. It's worrisome, but I know which side I would bet on.

Given the NSA vs. the Telcoms, Google, etc. result?
posted by eriko at 12:21 PM on August 6, 2013 [3 favorites]


The CDA can eat a big, fat, floppy donkey dick.
posted by entropicamericana at 12:22 PM on August 6, 2013


The phrase "only in America" used to be a whimsical thing where you'd see a report about some oversized product or fabulously ostentatious bauble, now it's followed by a sharp intake of breath and the phrase "Thank Christ"
posted by fullerine at 12:22 PM on August 6, 2013 [12 favorites]


So ... what happened to those offshore "data havens" that were such a thing back in the pre-Section 230 days? Might be time to see if the generators still start up.
posted by Kadin2048 at 12:22 PM on August 6, 2013 [2 favorites]


47 AGs versus technology companies and their lobbying budgets. It's worrisome, but I know which side I would bet on.

I know which side I am betting on as well, but the troubling part is that this is a nearly unanimous proposal. Usually when these things come up it's some nutjob like Cuccinelli or Santorum out there trying to defend public decency.
posted by cjorgensen at 12:22 PM on August 6, 2013 [2 favorites]


So, I could get congressmen and AG's I don't like in trouble by posting on their webpages and forums?
posted by oddman at 12:23 PM on August 6, 2013 [19 favorites]


I kind of agree with them, actually. But I'm worried that they may have left a few too many loopholes. I'm also concerned about unrestricted content distributed over telephones and written on blank paper. Also using throats and tongues and hand signals. And what about semaphore? Won't somebody think about those mother flaggers?
posted by It's Raining Florence Henderson at 12:23 PM on August 6, 2013 [15 favorites]


Sigh. I hoped for better from Kathleen Kane.
posted by Chrysostom at 12:25 PM on August 6, 2013 [3 favorites]


As cjorgensen notes, the EFF emphasizes the proposed change to the CDA would make content providers and ISPs liable for infringements in any local jurisdiction in the United States.

To use a car analogy, it's like buying a Ford in, say, Virginia that is not compliant with California smog emissions standards, driving to California, and then holding Ford criminally liable for the "non-compliance".

That is, if one could download a car… and you wouldn't download a car would you?

Unless you were of legal age… right?
posted by mistersquid at 12:27 PM on August 6, 2013 [8 favorites]


Posturing.

Not going to happen, At least while there is some money to be wrung out of the internet.
posted by Ad hominem at 12:27 PM on August 6, 2013 [2 favorites]


This is something that needs to be tracked so lawmakers get an earful of opposition. Since this post is going to wend its way off the blue, does anyone know another way to track the proposal?
posted by bearwife at 12:28 PM on August 6, 2013


I guess they want another "important tool" in their "enforcement of the law".

It's not that their hearts aren't in the right place, but it's the same old shit: Just craft the biggest fucking sledgehammer we can think of and go to town. I swear, intellectual laziness and a total ignorance of civil rights must be prerequisites for public office anymore.
posted by Benny Andajetz at 12:32 PM on August 6, 2013 [16 favorites]


the troubling part is that this is a nearly unanimous proposal.

Amongst Attorneys General, which is disappointing but not a surprise. I can't imagine it will be so broadly appealing to legislators.
posted by jon1270 at 12:33 PM on August 6, 2013 [1 favorite]


It's not that their hearts aren't in the right place

I don't care what's in their hearts. I care about the laws they propose.
posted by justsomebodythatyouusedtoknow at 12:37 PM on August 6, 2013 [10 favorites]


Well, I never thought I'd compare Ken Cuccinelli and Kamala Harris and find the latter wanting. Beau Biden can still go take a spin, though, so that's something.
posted by Etrigan at 12:38 PM on August 6, 2013 [2 favorites]


Between this, the NYTimes article about TSA Police at places other than airports*, the Civil Forfeiture post, the NSA stuff, I've been quite depressed lately and I'm really going to have to take a break from the news world.

*why hasn't this been a Metafilter FPP, btw?
posted by dukes909 at 12:38 PM on August 6, 2013 [9 favorites]


The following is merely my opinion, but there's absolutely no way this will come to pass. There's too much money at stake for big, powerful corporations; rather, I think this is a way of threatening ISPs and other stakeholders into a more modest deal that will nonetheless serve perhaps as a counter-balance for regular law enforcement against the power which the NSA has arrogated to itself. Even within the mantle of "government," there are many and diverse groups that jockey for position and power.
posted by clockzero at 12:39 PM on August 6, 2013 [1 favorite]


That is, if one could download a car… and you wouldn't download a car would you?

Oh, I never thought I could. Now that 3D printers are a reality, I can almost download a car. Just give me the right materials and 2,500 hours.
posted by filthy light thief at 12:41 PM on August 6, 2013 [3 favorites]


Amongst Attorneys General, which is disappointing but not a surprise. I can't imagine it will be so broadly appealing to legislators.

It will appeal to those who don't want to be accused of being soft on child molesters and/or terrorists. I know, a small caucus to be sure...
posted by entropicamericana at 12:46 PM on August 6, 2013 [1 favorite]


I wrote an article about this in law school, and I've worked as a criminal attorney since. It's a very real problem. I realize "Think of the children!" is a popular joke here on MetaFilter, but in this one instance I'd suggest anybody tempted to make that joke might also tell us whether you've ever met a child who has been trafficked.

In my opinion, CDA 230 needn't be read so ironclad as it is. I believe Craigslist and Backpage could be prosecuted successfully despite its existing language. I disagree with the EFF that Sheriff Dart's 2009 lawsuit was "ill-conceived"; I think the conception was solid, if slightly misguided, and with slightly different execution and luck it might have stuck.

But that's a minority opinion, by a lot, and most people in relevant legal circles disagree with me. So yes, the backup position is to somehow amend CDA 230. Maybe that doesn't solve the problem. As some of you suggest, maybe the offending websites move offshore, and then we're back to square one. I'm okay with that. We jail prostitutes, we shame johns, we do our best to prosecute pimps, but a company sitting in San Francisco willfully profits off the whole business to the tune of, according to one estimate from 2010, $36 million a year and we're powerless? That shouldn't be okay.

Yes, we should bend over backward to make sure CDA 230 keeps all its teeth regarding websites like MetaFilter, etc. It should probably keep most of its teeth overall. But the statute is consistently read, in my opinion and in this limited context, to be far more ironclad than is necessary. If that reading is the consensus reading, then yes, the law should be revised.
posted by cribcage at 12:47 PM on August 6, 2013 [10 favorites]


Remember this when the gubernatorial races begin. Looking at you, Eric Schneiderman.
posted by likeatoaster at 12:48 PM on August 6, 2013 [1 favorite]


Greg Abbott is running for Governor of Texas next year. Republicans, remember this and vote for someone else in the primary.
posted by immlass at 12:50 PM on August 6, 2013 [1 favorite]


Ugh, Kamala Harris is on board with this? I didn't vote for her to see this happen.

On a more general note, how is it that the bulk of California's senior elected officials are doing so miserably when it comes to protecting online freedoms and privacy? Feinstein and Boxer sponsored SOPA/PIPA and spearheaded the witchhunt for Manning and Snowden, and Pelosi stood right behind them.
posted by spitefulcrow at 12:51 PM on August 6, 2013 [6 favorites]


Remember this when the gubernatorial races begin. Looking at you, Eric Schneiderman.

As a Virginian, I'm as astounded as everyone else that Cuccinelli hasn't signed this. The fact that he's running for the governorship in November is probably the only reason he didn't. He's usually the most ardent supporter of 15th century ideals.
posted by Benny Andajetz at 12:55 PM on August 6, 2013 [1 favorite]


I'd be really grateful if one of the law-talking-people here explain this a little more fully than the linked pieces do. The actual proposed amendment to the law looks fairly minor (adding the words "or State" after the word "Federal" in the following sentence: "Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.") I'm not quite getting how that effects such a dramatic sea-change in a site's vulnerability to criminal liability. I mean, if sites are broadly protected from federal criminal liability despite the current wording of the act, why do they suddenly become vulnerable to every conceivable state criminal liability simply by adding the words "or State" to that sentence?

(I should make it clear that I'm not disagreeing with the ACLU interpretation of the effect, I'm just trying to grasp the steps involved.)
posted by yoink at 12:56 PM on August 6, 2013


We jail prostitutes, we shame johns, we do our best to prosecute pimps, but a company sitting in San Francisco willfully profits off the whole business to the tune of, according to one estimate from 2010, $36 million a year and we're powerless?

But we're not powerless. Even in the cited examples in the AG letter the people who committed the crimes were arrested. In fact, I would argue that this makes it easier to find and arrest these people and to prove they committed the crimes in question.
posted by cjorgensen at 12:57 PM on August 6, 2013 [5 favorites]


The phrase "only in America" used to be a whimsical thing where you'd see a report about some oversized product or fabulously ostentatious bauble, now it's followed by a sharp intake of breath and the phrase "Thank Christ"

The US has always just been imitating its cooler big brother. Britons had a global empire first; Britons had fried Twinkies first; Britons had a surveillance state and probably punk rock first; but the US gets all the credit now. It isn't fair!
posted by byanyothername at 1:01 PM on August 6, 2013 [1 favorite]


Clearly, the optimal solution is to rid the world of children. Let the current crop grow, stop allowing them to be generated and born ... in 20 or so years the problem solves itself.

The Case Against Babies.
posted by Scoop at 1:03 PM on August 6, 2013


rustcrumb: "Yeah it just seems like the burden of enforcement it would place on someone like Facebook or Google+ would be unmanageable. Youtube claims that it receives 100 hours of video per minute. You'd need at least 6000 people working around the clock just to put an eyeball on every frame..."

MORE JERBS FOR MURICANS!
posted by symbioid at 1:08 PM on August 6, 2013 [1 favorite]


Uh....I'm with yoink here. The proposal asks to broaden section 230(e)(1) to allow enforcement of state laws, but the shield for websites that host comments is in 230(c)(1). That reads, "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," and courts have interpreted "another information content provider" to include individual users. So you can't sue Matt for something I post to his website, because all the stuff I write is "provided by another information content provider," namely my deranged mind and typing fingers.
posted by Holy Zarquon's Singing Fish at 1:08 PM on August 6, 2013 [1 favorite]


bearwife: "This is something that needs to be tracked so lawmakers get an earful of opposition. Since this post is going to wend its way off the blue, does anyone know another way to track the proposal?"

Go to EFF? I imagine they offer alerts and emails about any movement on an issue.
posted by symbioid at 1:09 PM on August 6, 2013 [1 favorite]


I'm as astounded as everyone else that Cuccinelli hasn't signed this.

Virginia has a lot of tech companies. Maybe he knows what side his bread is buttered on?
posted by Kadin2048 at 1:09 PM on August 6, 2013


On a more general note, how is it that the bulk of California's senior elected officials are doing so miserably when it comes to protecting online freedoms and privacy? Feinstein and Boxer sponsored SOPA/PIPA and spearheaded the witchhunt for Manning and Snowden, and Pelosi stood right behind them.

Same reason that it's a problem everywhere else -- they do not fundamentally get the Internet. Kamala Harris is 48 years old; she graduated from law school in 1989. The chance that she so much as sent an email as a teenager is vanishingly small. The youngest state AG (Dustin McDaniel, Arkansas) is 41, so he might have had a computer in his dorm room but probably just used it for writing papers. My state AG is coming up on 60. The youngest member of the U.S. Senate turned 40 last week.

It takes a long time to reach these positions, and you don't get there by spending a lot of that time learning about HTML and TOR. I would bet that 95 percent of statewide elected officials and members of Congress only use the Internet for email, Facebook and Twitter (and those last two just because their campaign managers told them they need to be on them). Even the top 5 percent aren't really good at it -- they're just end users of certain things that have been heavily engineered to be easy for end users. Plus they didn't grow up with the Internet as an omnipresent thing like your average American under 30.

Attorneys General and legislators didn't get television for a long time, either, because it wasn't until the '80s that you had people in those positions who'd grown up with a TV in their house.

And they know that some of the people who use the Internet a lot are pedophiles and terrorists, so it's a haven for them, and certainly something can be done to stop that, right? Well, this is something, so let's do that.
posted by Etrigan at 1:12 PM on August 6, 2013 [8 favorites]


I'd suggest anybody tempted to make that joke might also tell us whether you've ever met a child who has been trafficked.

Probably many people here have kids of their own, and those who don't probably know children that they care about, so it's probably a sufficiently personal matter for everybody, if it weren't enough that most people really don't support the idea of child porn/trafficking.

Invoking "think of the children" sarcastically isn't a joke to most of those who say it. It's a way of pointing out that some people seem to think that if they just find the right cause, it's OK to knock down balances that were meant to defend other goods in its pursuit.

You probably understand that, and it's possible that you're trying to help people find balance in this discussion too, but it doesn't help to mischaracterize what's behind the statement "think of the children."

A better way of balancing out the discussion would be to address the mistrust of prosecutorial power. I'd be pleased to be convinced that many people aren't being hurt by its expansion and abuse, that I can trust most AGs to behave wisely with barer protections for those operating on the web, and that people inhabiting this office don't in fact get a perspective that tends towards epistemic closure when it comes to getting more/better tools to prosecute.
posted by weston at 1:13 PM on August 6, 2013 [12 favorites]


Kadin2048: "I'm as astounded as everyone else that Cuccinelli hasn't signed this.

Virginia has a lot of tech companies. Maybe he knows what side his bread is buttered on?
"

It has a lot of spy agencies, too?
posted by symbioid at 1:15 PM on August 6, 2013 [2 favorites]


A better way of balancing out the discussion would be to address the mistrust of prosecutorial power.

And when you're talking about a bunch of bureaucrats in the business of putting kids on death row or making them lifers, or scoring felony convictions against middle school students for bomb jokes, their invocation of child welfare here is inconsistent and opportunistic.
posted by CBrachyrhynchos at 1:21 PM on August 6, 2013 [10 favorites]


I can only assume that the only reason Cuccinelli didn't sign on to this is because he doesn't understand the technical stuff. Had someone been able to explain it to him in terms of cows and baling twine or something, it would be right up his alley.
posted by Naberius at 1:26 PM on August 6, 2013 [1 favorite]


Not to derail too far, but to cribcage's "...I'd suggest anybody tempted to make that joke might also tell us whether you've ever met a child who has been trafficked."

Uh, I know a few adults who were "trafficked" as a child. Two of them posted as vehemently against this proposition on Facebook this morning. One of is an activist who has stated several times that getting repeatedly raped in foster homes was worse than being pimped out by family members.

"For the children" would carry a whole hell of a lot more weight if it ever actually were for the children, but I have yet, including this instance, to see a case where the person crying that call actually gave a damn about the children. Every. Single. Time. it's been someone trying to callously leverage our sympathies for political gain.
posted by straw at 1:28 PM on August 6, 2013 [35 favorites]


I would argue that this makes it easier to find and arrest these people and to prove they committed the crimes in question.

Oh, it does. I can load Backpage right now and pick out at least five ads that were posted today advertising sexual services from women or girls who are almost certainly being coerced, within ten miles of my hometown. (It's too easy if I pick Boston, and the number would be higher than five.) The fact that you and I can make that list and yet no arrests will be made is a serious problem with complex causes, including police and prosecutorial resources.

But that's a separate issue. I'm talking about the fact that whether those arrests are being made or not, Craigslist and Backpage—which picked up Craigslist's slack after the demise of Erotic/Adult Services—are knowingly facilitating the business and profiting from it. They aren't doing a public service; they're helping it happen and cashing checks.

A better way of balancing out the discussion would be to address the mistrust of prosecutorial power. I'd be pleased to be convinced that many people aren't being hurt by its expansion and abuse

I'm not a prosecutor, so I can't credibly stand here and pretend to speak for their discretion. I would think that'd make my point more resonant, not less.

I have yet, including this instance, to see a case where the person crying that call actually gave a damn about the children. Every. Single. Time. it's been someone trying to callously leverage our sympathies for political gain.

Nice to meet you. I'm not a politician and I could give a fuck about your vote.
posted by cribcage at 1:31 PM on August 6, 2013


...but in this one instance I'd suggest anybody tempted to make that joke might also tell us whether you've ever met a child who has been trafficked...

Trafficked, no. I personally, in an IANYL-like situation, am helping a friend deal with the decision to go to her provincial AG about the fact that she was sexually assaulted by her brother while a youth, and the AG's decision not to prosecute him on the grounds that (among others) digital penetration / forced pubic hair shaving isn't the same category of offence as penile penetration (for the record, legally that's not what I would call "true"), and their decision not to release the supervisor's decision to her under the FOIA-equivalent on the ground that it's "a legal matter that relate to the performance of the AG staff" (well, except it's not a legal matter because they're not prosecuting, and I think the "relate to the performance" means "it would embarrass the AG")

All of which is to say I do not have much fair in an AG's office to be clear on what would be good to prosecute.

... As some of you suggest, maybe the offending websites move offshore, and then we're back to square one. I'm okay with that. We jail prostitutes, we shame johns, we do our best to prosecute pimps, but a company sitting in San Francisco willfully profits off the whole business to the tune of, according to one estimate from 2010, $36 million a year and we're powerless? That shouldn't be okay.

Well some among us, myself strongly included, think that jailing prostitutes / shaming johns is a serious problem and don't want to go further down the wrong road. I am ok with prosecuting pimps, depending on that definition.

Yoink and HZSF, that is interesting. Obscenity still seems like it could be a problem, because that can indeed vary place-to-place. But I dunno enough about US obscenity laws (you guys have stronger speech protections in general than I'm used to) to know how much it varies state-to-state and what the "floor" would be.
posted by Lemurrhea at 1:32 PM on August 6, 2013 [6 favorites]


"For the children" would carry a whole hell of a lot more weight if it ever actually were for the children, but I have yet, including this instance, to see a case where the person crying that call actually gave a damn about the children. Every. Single. Time.

I think it's a bit much to claim that every single AG who signed this letter doesn't give a damn about child trafficking and is cynically exploiting the issue for...what, exactly?
posted by yoink at 1:32 PM on August 6, 2013


At the risk of derail, I think all of the reasons above apply to Cuccinelli. But I think he's mostly concerned with his image at the moment. The election is in 4 months, and he knows he has a bad rep (that's really being played up by the McCauliffe side) as a culture warrior that doesn't sit very well with a lot if the electorate. He's trying very hard to play it down.
posted by Benny Andajetz at 1:33 PM on August 6, 2013


"For the children" would carry a whole hell of a lot more weight if it ever actually were for the children, but I have yet, including this instance, to see a case where the person crying that call actually gave a damn about the children. Every. Single. Time. it's been someone trying to callously leverage our sympathies for political gain.

To be fair to the AGs, I personally don't think it's deliberately trying to manipulate sympathies for gain so much as an effort to solve an actual (albeit perhaps exaggerated) problem that has misplaced trust in prosecutorial discretion to avoid problems.
posted by dsfan at 1:33 PM on August 6, 2013


The AGs need to find a better way.

The AGs need to reread the first amendment.

I'm looking at you, Schuette.
posted by Mojojojo at 1:35 PM on August 6, 2013 [3 favorites]


We jail prostitutes, we shame johns, we do our best to prosecute pimps, but a company sitting in San Francisco willfully profits off the whole business to the tune of, according to one estimate from 2010, $36 million a year and we're powerless? That shouldn't be okay.

Companies make money peripherally from illegal activities all the time, it's just more obvious in the case of Craigslist. How much does the hotel industry make in the US from illegal prostitution?

It would be much easier to just regulate the sex worker industry itself rather than fighting a never-ending losing battle to completely prohibit it that includes trying to regulate the entire Internet. Even if the Internet itself was completely shut down tomorrow, unregulated prostitution would have all of the same serious problems that it has today.
posted by burnmp3s at 1:36 PM on August 6, 2013 [13 favorites]


How much does the hotel industry make in the US from illegal prostitution?

Where I live the hotel industry profits more from homelessness than from prostitution, which is a separate abhorrent discussion worth having sometime. But you're right, hotels profit from prostitution. So do Trojan and TracFone. But to my knowledge, none of those companies profit or market their products/services any differently to a prostitute or pimp than to a traveling salesman. Craigslist and Backpage do.
posted by cribcage at 1:45 PM on August 6, 2013 [1 favorite]


Count me among those who disagree with cribcage that jailing prostitutes is a good thing or moving us towards a desireable end. Jailing prostitutes makes it easier for them to be coerced as they know that they cannot call the police for protecton if they are raped, assaulted, threatened, or trafficked.

I'd also argue that if we want to work against human trafficking there's many, **MANY**, better approaches than crippling free speech on the net and making websites criminally liable for content posted by users.

The owners of Craigslist should not be imprisoned, or fined, simply because a vile person posts an ad for the services of a person forced into sexual slavery. That simply makes no sense at all. We might as well argue that the makers of film [1] should be imprisoned or otherwise penalized because a child molestor used their brand of film to take photos of children being abused. Or heck, imprisoning the owners of the phone company because someone makes a telephone call to hire the services of a person forced into sexual slavery.

Furthermore, with all the staggering and disturbing surveillence from the NSA given to the DEA I have no doubt that if the US government was really serious about fighting human trafficking they could devote 1% of the resources given to the War on Drugs to the cause and end the practice in a year or two. No need to break the internet, the NSA's illegal and obscene powers are already more than sufficient to do the job that it is claimed this legislation is for.

[1] Deliberately using an archaic example for the aid of technology challenged legislators and prosecutors.
posted by sotonohito at 1:51 PM on August 6, 2013 [6 favorites]


We jail prostitutes, we shame johns, we do our best to prosecute pimps, but a company sitting in San Francisco willfully profits off the whole business to the tune of, according to one estimate from 2010, $36 million a year and we're powerless? That shouldn't be okay.

I agree that this isn't okay. It seems we've drawn opposite conclusions, though. Mine would be to stop jailing prostitutes and shaming johns. Carry on with the pimps, though,
posted by Justinian at 1:51 PM on August 6, 2013 [3 favorites]


It sure is convenient to have a boogeyman or two. Think of the children, think of the terrorists, but don't think of the billions of ordinary people whose rights and abilities get restricted along the way.
posted by ook at 1:58 PM on August 6, 2013 [6 favorites]


Note: Help maintain a healthy, respectful discussion by focusing comments on the
issues, topics, and facts at hand—not at other members of the site.


Note: Don't be an idiot or I could go to jail.
posted by double block and bleed at 1:59 PM on August 6, 2013 [2 favorites]


Count me among those who disagree with cribcage that jailing prostitutes is a good thing

I don't see where Cribcage said that.

Carry on with the pimps, though


I'm not clear what the bright moral line is between the pimps and the websites that profit from advertising the services the pimps provide. Personally I think prostitution should be legal; but isn't this a discussion that is mostly unrelated to the question of underage and otherwise coerced prostitution?
posted by yoink at 1:59 PM on August 6, 2013 [1 favorite]


I think when someone makes an argument that "prostitution has bad effects, therefore we must criminalize much of the internet" it's fair to say "we could address those bad effects through legalization instead."
posted by Justinian at 2:02 PM on August 6, 2013 [2 favorites]


we could address those bad effects through legalization instead

But nobody, I hope, is arguing for legalizing underaged or coerced prostitution, are they? So I don't see how legalization is a useful remedy for those ills.
posted by yoink at 2:07 PM on August 6, 2013


In many ways it absolutely is, just as repealing prohibition of many drugs would address many of the ills caused by that prohibition. But that discussion is probably beyond the scope.
posted by Justinian at 2:10 PM on August 6, 2013


In any case I don't think this proposal is going anywhere, thank god. It's a terrible idea. Maybe even terrible enough of an idea that Congress won't do it and the President wouldn't sign it.
posted by Justinian at 2:12 PM on August 6, 2013


I'm not a prosecutor, so I can't credibly stand here and pretend to speak for their discretion.

You seem to be speaking for their desired change to the law. Can you explain why you're apparently less circumspect in your advocacy on that point but more so when discussing what might actually happen if it were changed?
posted by weston at 2:13 PM on August 6, 2013


I've never understood why we can't simply give porn a legitimate corner of the web with an .xxx extension. It seems to me that [consenting adult] sex is largely a healthy thing (NOT sex trafficking) and if we admitted that, it might provide the outlet & make the less desirable routes less, um - desirable.

Benny Andajetz: I might add that since NC has sufficiently cornered the return to 16th century ideals, we'll gladly let VA have the 15th.
posted by yoga at 2:35 PM on August 6, 2013


This is the part of the EFF statement that stands out for me:
After reading the AGs' letter, the casual observer might believe that state law enforcement officials are powerless to prosecute criminals, such as reprehensible pimps who advertise children on the Internet, based on some imagined "loophole" in Section 230. Nonsense. The CDA imposes no barrier preventing states from enforcing state laws against those who directly participate in the promotion of prostitution or trafficking online, nor does it even bar prosecution of those service providers who actually aid and abet the illegal conduct of others. To the contrary. As Cook County (Illinois) Sheriff Thomas Dart demonstrated in 2009 in his own ill-conceived lawsuit, not only can law enforcement officials prosecute criminals based on their online behavior, online platforms such as Craigslist can provide critical aid in the form of the digital footprints that those criminals leave.
If this is the case, why indeed does 230 need to be amended? The huge clusterfuck that would ensue online seems hardly worth it if the change isn't even necessary in the first place.
posted by Marisa Stole the Precious Thing at 2:46 PM on August 6, 2013 [3 favorites]


A better idea would be to give all website moderators a virtual "gun". That way, when an unsavory type, disgruntled in some way, begins to stalk the virtual "halls" of a website, "firing" racism and sexism into the various "rooms" where other users congregate, the moderator will be able to "shoot" them, effectively banishing them from the website.
posted by turbid dahlia at 2:54 PM on August 6, 2013 [2 favorites]


Can we task the NSA with content moderation?
posted by ryoshu at 2:54 PM on August 6, 2013 [3 favorites]


Yes! "CrimCaptcha". "Type the name of the next big crime you plan to do, exactly as it appears in the box above (case sensisitve)."
posted by turbid dahlia at 3:08 PM on August 6, 2013 [1 favorite]


A better idea would be to give all website moderators a virtual "gun". That way, when an unsavory type, disgruntled in some way, begins to stalk the virtual "halls" of a website, "firing" racism and sexism into the various "rooms" where other users congregate, the moderator will be able to "shoot" them, effectively banishing them from the website.

Gun ownership and use tends to be somewhat controversial around here. Can it be a hammer instead?
posted by ActingTheGoat at 3:27 PM on August 6, 2013 [1 favorite]


If this is the case, why indeed does 230 need to be amended?

I don't think it does, in order to prosecute websites that facilitate child trafficking. But nobody who matters (no, the EFF kinda doesn't) agrees.

As was pointed out, the fangs of CDA 230 aren't in the section (e)(1) but instead in the earlier (c)(1). Here's the sentence that caused all the mischief:
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.
That has been consistently interpreted as an immunity clause. To my knowledge, the best statement otherwise to date has come from a 2008 decision by the Seventh Circuit. Craigslist was being sued for allegedly violating the Fair Housing Act by publishing discriminatory housing ads ("No minorities," "No children," etc). The company ultimately escaped liability because the court ruled Craigslist wasn't a "publisher," for CDA purposes, in that instance—but before doing so, the court offered its non-binding opinion on the sentence causing all the trouble:
Why not read § 230(c)(1) as a definitional clause rather than as an immunity from liability, and thus harmonize the text with the caption? ... On this reading, an entity would remain a “provider or user”—and thus be eligible for the immunity under § 230(c)(2)—as long as the information came from someone else; but it would become a “publisher or speaker” and lose the benefit of § 230(c)(2) if it created the objectionable information.
That makes sense. It's worth noting that in drawing its conclusion that Craigslist was merely a service provider and not a publisher, the court observed that Craigslist treated discriminatory and non-discriminatory housing ads identically. There was no separate section for discriminatory ads. Contrast this with ads for prostitution, which had their own section, discrete fees, and even (according to Craigslist) staff to police them.
posted by cribcage at 3:43 PM on August 6, 2013 [5 favorites]


Marisa Stole The Precious Thing: The problem is that sometimes, the "aiding and abetting" is giving the illegal conduct someplace to happen - look at the recent takedown of Freedom Hosting, for a good example. Furthermore, Section 230 has been held to cover a very wide latitude of conduct on the part of the service operator, thanks to one of the early cases, Batzel v. Smith. The EFF's rather bloodless write-up of the case hides how disturbing the case was: the defendant ran a well known and regarded listserv tracking stolen art and antiquities, in which he would forward email tips he would receive. He received an email claiming that the plaintiff, unbeknownst to others, was the descendant of a Nazi war criminal and possessed several pieces of art stolen during the Third Reich. Without investigating the validity of the email, he forwarded it onto the listserv. The result of this was the plaintiff was turned into a pariah, and even was physically endangered (her house was broken into by neo-Nazis looking for the artwork.) When she sued the defendant for defamation, he claimed immunity under Section 230, and was successful in doing so.
posted by NoxAeternum at 3:44 PM on August 6, 2013 [1 favorite]


I've never understood why we can't simply give porn a legitimate corner of the web with an .xxx extension.

Reverse that. There is nothing stopping the US from grabbing kids.us, having people and companies register .kids.us, and policing the content within there to their heart's content. Heck, throw in .teens.us for things PG-13 and up.

Parents would be able to set web filters to only allow *.kids.us, and be able to report anything untoward to the governing agency.

We shouldn't try to restrict the whole adult world to allow only child-friendly speech when we can make a safe-for-children space instead.

posted by fings at 4:08 PM on August 6, 2013 [20 favorites]


I've never understood why we can't simply give porn a legitimate corner of the web with an .xxx extension.

Because what is the penalty if I decide my site isn't a .xxx? Am I forced to have this?
What if I do decide I am a .xxx, but ISPs decide they are going to block the .xxx domains?
posted by cjorgensen at 4:17 PM on August 6, 2013 [1 favorite]


The article is being a bit dramatic in saying that every website on the Internet will be liable for it's content. If passed, the proposal only affects websites hosted on American soil. Like Kadin2048 and cribcage mentioned, websites hosted offshore can't be touched by it.

With that said, I think this is horrible.
posted by tenpointwo at 4:43 PM on August 6, 2013


Websites hosted offshore can't be touched by it.

Presuming the owner is also able to move offshore. I don't think the US will much care if I host in Helsinki if I am running a child porn site and living in Iowa.
posted by cjorgensen at 5:15 PM on August 6, 2013


I'm getting annoyed with the snarky internet commenters who immediately post "omg it's "think of the children!"" like it's a legitimate argument anymore. Just the other day on reddit, I was accused of being "NSA PR" and had the phrase "Think of the children!" thrown at me multiple times because I had the audacity to say that it wasn't the end of the world just because the FBI arrested a known child porn peddler.

So, yes, MetaFilter. People do think of their children, and child sex trafficking is actually a pretty big deal. Does it deserve making a mess of the entire internet just to stop traffickers from using Backpage? Probably not. They'll move to something else, just like they moved from Craigslist. But not every argument that mentions children is an attempt to remove your right to be jackasses online, and I'm tired of peeking into one of these threads just to see a bunch of people ranting and raving with a bunch of the same tired memes about how it's the end of the internet as we know it.

Now if you'll excuse me, I'm going to go complain about this YouTube Geek Week commercial I just saw.
posted by ceol at 6:17 PM on August 6, 2013 [4 favorites]


Well, I never thought I'd compare Ken Cuccinelli and Kamala Harris and find the latter wanting.

Well, that's disappointing.
posted by homunculus at 7:39 PM on August 6, 2013


How would this affect the 6.8 billion of us who don't live in the US?
posted by ethnomethodologist at 8:40 PM on August 6, 2013 [1 favorite]


I'm going to explain why Section 230 as it's interpreted now is overly broad and what the issue is with that. And I'm going to do so without resorting to "think of the children".

First, let's start with what prompted the creation of Section 230 in the first place. Prior to the enactment of the CDA, there was a growing issue with online fora, as companies were using moderation as a wedge to attack online message boards, arguing that the use of moderation constituted editorial control, which in turn meant that they were responsible. The result was that online providers were caught in a Catch-22 - moderation opened one up to legal liability, but so did not moderating. More and more, providers decided that "the only winning move is not to play", and began to stop allowing public comments.

To protect online providers who were just providing a service in good faith, Congress came up with Section 230. The idea is that if you provide a public forum, moderation shouldn't cause you to take responsibility for what other people are posting on that forum. It's a fair compromise - providers shouldn't be assumed to share the views of people just because they're using their service. But what if the service goes beyond providing an open forum?

This is where the wheels come off the wagon.

I mentioned a case earlier, Batzel v. Smith. This is the case that expanded the reach of Section 230, by allowing an individual to successfully raise a Section 230 defense for a service that did include editorial curation, not just moderation after the fact. Thus, Section 230 became a blanket defense for service providers of all stripes - as long as a certain distance is kept between the provider and the content, the provider is indemnified from any repercussions of presenting the content, even if the provider does exert editorial control.

How does this work badly? Well, let's take a scenario where Alice creates a defamatory piece about Bob, then submits it to Chuck, who runs a popular website, through a "tip box" that Chuck maintains. Chuck then prints the piece as is without vetting, and because of his position, the defamatory claims are widely accepted, ruining Bob's reputation. In this scenario, who is responsible for the damage? Yes, Alice has a share of the responsibility for being the source of the claim, but she would never have been able to get the charges to stick in any shape without the clout and credibility that Chuck brings to the table. But thanks to the expanded interpretation of Section 230, Chuck asserts that he was solely providing a service, and as such cannot be held liable for any damages.

(In fact, the above was actually the underlying scenario in the Batzel case. John Dean did an excellent writeup of the case in FindLaw, detailing the issues with the ruling.)

To be fair, I'm sympathetic to the argument that the request of the AGs goes too far, and that there does need to be one national standard for service providers to be held to. But at the same time, that standard should be higher than "as long as you keep enough distance between you and the people giving you your content, you're indemnified from the repercussions of the content." And I also think that making that standard higher isn't some dire threat to free speech.
posted by NoxAeternum at 11:08 PM on August 6, 2013 [5 favorites]


eriko: “Not enough manpower in the world -- and all it takes is one mistake to leave you liable.”
Actually, I think the Attorneys General just solved the unemployment problem! It's the 21st century equivalent of taking in each other's washing, but at least most of us will still be able to mechanically wish each other happy birthday on Facebook.
posted by ob1quixote at 11:58 PM on August 6, 2013


looking at the original text, and the proposed text, I have a theory. here is the proposed amendment:

(e) Effect on other laws
(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal or State criminal statute.
("or State" is what the AGs want added to the text)

section 231 reads:
(a) Requirement to restrict access
(1) Prohibited conduct
Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

and definition of "harmful to minors" is:
(6) Material that is harmful to minors
The term “material that is harmful to minors” means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.


call me crazy but it looks like to me that the AGs are using the "zomg, the children!" angle to open up prosecution of adult pornography sites according to local (State) community standards. isn't that what this is about? i remember newt gingrich say more than once that porn doesn't constitute free speech as there is an implied exception to obscene material. obviously the feds don't give a crap about internet videos of consenting adults, but it seems like the text here is concerned with the criminality of "prurient" content that is "offensive" to minors, meaning, you could prosecute someone criminally in a state court, and as long as a local jury finds it offensive then you're going to jail.
posted by camdan at 5:24 AM on August 7, 2013 [2 favorites]


mistersquid: As cjorgensen notes, the EFF emphasizes the proposed change to the CDA would make content providers and ISPs liable for infringements in any local jurisdiction in the United States.

To use a car analogy, it's like buying a Ford in, say, Virginia that is not compliant with California smog emissions standards, driving to California, and then holding Ford criminally liable for the "non-compliance".


I think it's worse. It's more like buying a Ford in Virginia that is not compliant with California smog emissions standards, driving it around Virginia, then having Ford be criminally liable for the molecules of pollution that drift from Virginia to California. And every other State that has pollution standards.

If the State AGs wanted to actually fix the problem, they would have suggested ways of reforming the exemptions so that they didn't cover behaviour that ought to be illegal. That would allow prosecutions to be brought under either State or Federal law. Instead, they've come up with an idea that would make any host anywhere in the US liable to be prosecuted under any law of any State that their site can be accessed in (according to the ACLU and the EFF, anyway, but I see no reason why either is wrong).

That is such an obviously terrible idea that it's hard to believe it's being put forward in good faith.

cribcage: I realize "Think of the children!" is a popular joke here on MetaFilter, but in this one instance I'd suggest anybody tempted to make that joke might also tell us whether you've ever met a child who has been trafficked.

It's not a joke. It's a weary observation that people who are in favour of repressive laws often try to claim the moral high ground by hiding their real motives behind a concern for children. This letter is a classic example, and the fact that the problem seems to be real just makes it more offensive.
posted by A Thousand Baited Hooks at 9:11 AM on August 7, 2013 [4 favorites]


That would allow prosecutions to be brought under either State or Federal law. Instead, they've come up with an idea that would make any host anywhere in the US liable to be prosecuted under any law of any State that their site can be accessed in (according to the ACLU and the EFF, anyway, but I see no reason why either is wrong).

Given that the sum total of the amendment they propose is to add "or state" to a clause that specifies that the websites do, in fact, remain liable under federal law, how are they not suggesting a change "that would allow prosecutions to be brought under either State or Federal law"? I'm still flummoxed as to why the consequences of this change would be as drastic as the ACLU and EFF suggest.
posted by yoink at 9:24 AM on August 7, 2013


A Thousand Baited Hooks: I can make the same argument with regards to how "free speech!" winds up shoehorned into defending all sorts of actions in a similar attempt to grab the moral high ground as well. For example, the EFF recently defended the exploitation of college athletes, claiming a defense of free speech in doing so.
posted by NoxAeternum at 9:30 AM on August 7, 2013 [1 favorite]


They'll move to something else, just like they moved from Craigslist.

That's true, but sex trafficking is an industry hugely fueled by customer demand in a way that's particularly susceptible to availability. Numbers changed drastically when Craigslist took over from newspaper classifieds, and they shifted again when Craigslist finally shut down its Adult Services section. Backpage doesn't have Craigslist's profile. It's the difference between having your widget sold in Christmas Tree Shops versus having it sold in Walmart.

There are customers who will arrange illicit meetings via Craigslist or Backpage, who would never dare to pick up a girl on the street. If you prohibit companies like Craigslist or Backpage from publishing these ads, it makes a dent in the demand. It also makes traffickers' jobs slightly more difficult, which maybe means they can run fewer girls. The latter dent is probably smaller, but I'll take both. More immediately, it stops major companies from blatantly and knowingly facilitating this trade and profiting from it. That's a disgusting and actively harmful status quo, and it should change.

It's a weary observation that people who are in favour of repressive laws often try to claim the moral high ground by hiding their real motives behind a concern for children. This letter is a classic example

If somebody who has any expertise on this subject whatsoever cares to share his/her analysis on how that's happening here, I'm more than willing to listen. Otherwise I assure you, what's wearying is having a bunch of IT staff indoctrinated in net neutrality jeer their party-line "Won't someone think of dot-dot-dot!" every time anybody proposes any regulation that affects children.
posted by cribcage at 9:31 AM on August 7, 2013 [2 favorites]


cribcage: how can you tell from the ads if the service being advertised involved trafficked girls? Are there code-words or red flags or something?
posted by Justinian at 11:54 AM on August 7, 2013


If you mean underage girls, then yes, there are both code words and red flags. If you're asking about discerning people who are being trafficked/coerced from people who are working independently, that's trickier but the answer is still basically yes. There are key words and phrases that don't tend to be used by independents, and there are things independents often do that traffickers don't bother with.
posted by cribcage at 12:28 PM on August 7, 2013


The next logical question is, "So what are the code words?" I deliberately didn't provide examples, because I'm not comfortable posting that information here. (I wouldn't post instructions on building a pipe bomb, either.) But on second thought, I think it's different to point to the information in context, so I'll mention a paper by a Carnegie Mellon student titled, "Predictive Patterns of Sex Trafficking Online." You can find the PDF via Google. It's an interesting and well-written paper that largely accords with my experience, and the author discusses Justinian's question at length.
posted by cribcage at 12:57 PM on August 7, 2013 [2 favorites]


Thanks cribcage!
posted by Justinian at 1:01 PM on August 7, 2013


This is on point for the discussion. Girl gets bullied on ask.fm, kills herself, and the parents want the people running the site to be charged with manslaughter. Not a US case, but perfectly encapsulates the whole idea of what could happen with 50 different laws on who is responsible for what.
posted by cjorgensen at 6:45 PM on August 7, 2013


cjorgensen: I'd argue that case illustrates the issues people have with the level of indemnity that Section 230 provides website operators. As is pointed out in the piece, this wasn't the first time someone committed suicide over cyberbullying through ask.fm - at at certain point, you have to wonder why the website hasn't done more to deal with the issue, as it seems that the matter is endemic, and as Anil Dash pointed out, the website operators share some measure of responsibility for the environment on their site.
posted by NoxAeternum at 10:17 PM on August 7, 2013


I don't expect this to go anywhere, what with Obama's extensive utilization of "new media" to get his word out. Obama was thinking about how to use social media before 2008, so I imagine he's pretty savvy about how the internet really works now. See more on the Wikipedia page Barack Obama on social media.
posted by filthy light thief at 9:17 AM on August 8, 2013


The idea of free speech was conceived as the right to speak against prevailing political and religious domination. I highly doubt the founding fathers would have approved of the concept being used to shield criminal actions outside the public sphere of open political debate. Allowing sites not to be held accountable has little to do with curbing free speech.

There just has never before been a time in history when anyone had the resources to immediately disseminate damaging ideas permanently around the world. This is really not the same as printing up leaflets against the king.

We need to think not just -- or even FIRST -- of the rights of the people who want to "speak" but rather first of the rights of those whose images, names and reputations are put forever into unimaginably vast networks of circulation. Yes, I am indeed thinking of the children, and the women, and of all people.
This is not a conversation that can extend seamlessly from the rights to free speech.
posted by third rail at 1:13 PM on August 8, 2013 [1 favorite]


As is pointed out in the piece, this wasn't the first time someone committed suicide over cyberbullying through ask.fm - at at certain point, you have to wonder why the website hasn't done more to deal with the issue, as it seems that the matter is endemic, and as Anil Dash pointed out, the website operators share some measure of responsibility for the environment on their site.

Even by the standards of that Dash piece, ask.fm is golden. They have a reporting mechanism in place. That it wasn't utilized doesn't make this girl's death their fault. I would argue that a 14 year old shouldn't have unsupervised access to the internet.

If I were to blame anyone in her death I would blame the fact that she had no coping skills, had no ability to report the abuse, and she hd unfettered access to the internet. I would also blame the bullies. I do not blame ask.fm.

Allowing sites not to be held accountable has little to do with curbing free speech.

Why should I be responsible for your speech though? If I provide a forum I shouldn't be held accountable for what people say on it. That doesn't scale.
posted by cjorgensen at 7:58 AM on August 9, 2013


cjorgensen: Read the piece by Dash that I linked. He explains in detail why your argument is reprehensible handwashing. But the short version is simple - no, you may not have been the one to say those things, but as the site operator, you created the environment that allowed for this to happen. You might not have set the fire, but you put the chains on the doors. And yes, that means that you share a good portion of the responsibility. And the "scale" argument doesn't fly either - either plan to properly support the scale you reach, or maintain the scale at a level that you can support (which is what MeFi itself does.)

Also, the victim blaming serves to further undermine your argument.
posted by NoxAeternum at 8:51 AM on August 9, 2013


the short version is simple - no, you may not have been the one to say those things, but as the site operator, you created the environment that allowed for this to happen

As the operator of a telephone company, you created the environment that allowed [reprehensible and criminal communication that occurred via telephone] to happen.

As the operator of a television program, you created the environment that allowed [your op-ed commentator to go off the rails and incite violence, or somebody's nipple to become visible for an instant, or whatever other terrible thing] to happen.

As the operator of a website that allows the public to contribute comments, you created the environment that allowed [reprehensible and criminal communication] to happen.

As the operator of a store that allows the public to post messages on a corkboard, you created the environment that allowed [reprehensible and criminal communication that occurred via corkboard] to happen.

As the owner of a building with a publicly accessible lobby, you created the environment that allowed [reprehensible or criminal activity to occur in that lobby].

In other words: this very very far from simple and clearcut, even before the Internet comes into the picture. Reasonable people can disagree on how much the owner and operator of a public forum, of whatever type, should be responsible for the contents of that forum, and in most cases it's going to depend on the circumstances. (Hypothetical: if somebody is kidnapping children via posting "free candy!" messages on a coffeeshop corkboard, is the coffeeshop responsible? You could argue that "free candy!" is obviously sketchy and the coffeeshop owner should be monitoring the board and removing obviously sketchy things -- but what if the posting was for "piano lessons"? Where's the line? It's not clearcut.) Even the classic "common carrier" thing may not be as sharp a dividing line as you might think: how big and how widely used does a forum have to be before it can reasonably be considered a "common carrier"? Does facebook count? Should it? (I'm not making an argument either way on this; I could see reasonable people coming down on either side.)


Anil Dash is not making a legal argument, he's making an ethical argument. In terms of ethics I think he's absolutely right: website owners (and coffeeshop owners, and lobby owners) should make their best efforts to keep the spaces they're responsible for as safe and nonthreatening as possible, not least because it's in their own best business interests to do so!

But as a legal argument... well, I'm not going to put words in Anil's mouth, he's a member here and can tell us his own opinion on that aspect if he chooses. Me, I'm uncomfortable with the idea that every website owner should be required be police the behavior of every one of their users, and I'm very uncomfortable with the idea that they should be held responsible for the behavior or actions of others. Maintaining a website on which some subset of users cross the line into bullying behavior is in no way analogous to "chaining the doors" of a building on fire; that sort of hyperbole, well, undermines your argument.

Ultimately the people held legally responsible for criminal or reprehensible behavior should be, in my opinion, the people actually performing the criminal or reprehensible behavior, not the maintainers of the public space in which the criminal or reprehensible behavior happens to occur.
posted by ook at 10:33 AM on August 9, 2013 [1 favorite]


(The exception I'd draw would be cases where the maintenance or structure of the public space actively contributes to unsafe or criminal behavior: a building lobby filled with broken glass or live bare electrical wire, or a website explicitly devoted to nonconsensual upskirt photos, say. But that is -- and IMHO should be -- a much higher bar than you appear to be arguing for, NoxAeternum.)
posted by ook at 10:51 AM on August 9, 2013 [1 favorite]


Anil Dash is not making a legal argument, he's making an ethical argument. In terms of ethics I think he's absolutely right: website owners (and coffeeshop owners, and lobby owners) should make their best efforts to keep the spaces they're responsible for as safe and nonthreatening as possible, not least because it's in their own best business interests to do so!

Exactly, and if there are provisions in place to attend to abuse and no one avails themselves of these avenues of reporting I am unclear what ask.fm was supposed to do. If no one tells the janitor that someone shit in the hallway it's not going to get cleaned up.

Also, the victim blaming serves to further undermine your argument.

I am not victim blaming in the manner this accusation is traditionally used. The primary victim in this case is dead and I don't think any of it was her fault. I was skirting around the issue, but I would actually blame the parents more than ask.fm. Teenagers do not belong on the internet unsupervised. I was trying not to blame the parents, because I see them as secondary victims. Victim blaming is horrible, but sometimes people are willing or just naive victims. Like an American visiting Egypt currently. It doesn't take an once of foresight to see this is a bad idea. Do I condone anything that happens to a person who goes there? No, but I would say they should have been smarter.

Had her parents been monitoring her internet usage they could have identified the problem, could have reported it properly and ask.fm would have taken it down, could have spoken with their daughter and assessed her mental state, could have reported the bullying conduct to proper authorities and parents, etc. Instead they relied on uncaring strangers to police their daughter's activities. This is a staggering abdication of parental responsibility. It's akin to storing loaded guns in a daycare.
posted by cjorgensen at 11:04 AM on August 9, 2013


You might not have set the fire, but you put the chains on the doors.

To my view, this is one interesting facet of CDA 230. The law was enacted in 1996. You have to remember how differently our culture related to the Internet in 1996 compared to today. Back then, AOL was still thought of as a place people went. It was still noteworthy to find a new website, as opposed to just a unique one. We asked each other, "Do you have Internet?"; everybody who did was using dial-up; and positively nobody had it in their pocket.

Looking back, you have to think about what was envisioned by the juxtaposed terms "interactive computer service" and "information content provider."

the people held legally responsible for criminal or reprehensible behavior should be, in my opinion, the people actually performing the criminal or reprehensible behavior

Of course, but that's not really the question. Everybody agrees the person posting the ad ("information content provider") should be punished. The harder question is, at what point does "maintaining a space" turn into behavior that is itself reprehensible and/or criminal? The answer can't be never.
posted by cribcage at 12:44 PM on August 9, 2013


Looking back, you have to think about what was envisioned by the juxtaposed terms "interactive computer service" and "information content provider."

So... I can actually give you firsthand at least one side of this, because in 1994 through about 1996 I was working at tripod.com, which was one of the first (possibly the first) sites to host user-generated web pages. This was not the original business plan, at all; it was basically a midnight lark perpetrated by one coder (whose idea it was) and one designer (me, whose contribution consisted of an embarrassingly on-the-nose blueprint-looking decorations, because "homepage builder" you know), which rapidly engulfed the entire company. Anyway, as you can imagine, the passage of the CDA was kind of a Big Deal around our office.

I wasn't directly involved with the legal side of things, and time marches on so I'm fuzzy on some of the details, but prior to CDA we deliberately did not do any moderation of user content, because it was felt that if we deleted or modified any of it we were at risk of becoming liable for everything we didn't modify or delete. Pretending to be a "common carrier" was our only defense, in other words -- it was felt that user-generated content was an all-or-nothing kind of deal, you were either anything-goes USENET or you were kiddie-playground AOL. So even if we spotted something illegal or offensive, we left it there. (There may have been one or two accidental data loss incidents here and there, I wouldn't know anything about that though)

Which is a large part of the reason CDA230 exists in the first place. "`(c) PROTECTION FOR `GOOD SAMARITAN' BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-" -- the whole point was to allow websites to do a reasonable amount of content moderation without becoming de facto responsible for everything they left untouched.

at what point does "maintaining a space" turn into behavior that is itself reprehensible and/or criminal? The answer can't be never.

Well, I did give a couple of examples of cases where I'd agree that the maintainers should be culpable. "Active contribution" is a high bar, to be sure, and I could see reasonable arguments for a lower standard -- but, well, erowid.org is my litmus test. Anything that weakens website owners' protections to the point where erowid or something like it would become impossible to safely run, goes too far in my opinion.
posted by ook at 2:30 PM on August 9, 2013 [2 favorites]


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