State Attorneys General Want To Sue Innovators 'For The Children!'

from the oh-please dept

We warned this was coming last month, but it's now official as 49 48 47 of the 50 state attorneys general have sent an absolutely ridiculous letter to Congress seeking to obliterate the very important Section 230 of the CDA. As has been discussed, at length, over the years, Section 230 has played a key role in allowing innovation to flourish online. What it does is guarantee that (a) liability is properly placed on the party breaking the law and that (b) internet services and innovators can quickly extricate themselves from bogus costly lawsuits filed by people who try to blame those services for how their users use them.

The concept behind Section 230 is quite straightforward: the internet service is not liable for the actions of its users. This should be common sense. We don't blame AT&T when someone makes a phone call to try to extort someone. Nor should we blame an internet service when someone does something illegal via their service. Unfortunately, we live in an age of what I've referred to as Steve Dallas lawsuits, after a classic Bloom County comic strip in which lawyer Steve Dallas explains why he's suing a camera company after he got beat up by a celebrity in trying to take a paparazzi photo. He notes that all of the other suspects aren't good to sue, but going after "a major corporation with gobs of cash" and claiming they were "criminally negligent" is the American way.

This gets even worse when you throw state attorneys general into the mix. As a group, state AGs tend to be highly ambitious political folks who almost always are using the AG slot to run for higher office (Governor or Senator, typically). As such, they tend to focus on headline grabbing populist efforts, even when there's absolutely no legal basis. Tech companies have been a major target, because the AGs like to blame them for any wrongs in the world. The reality, of course, is that in doing so, they are often making their own jobs harder. For example, the AGs hounded and hounded and hounded Craigslist over and over again about the fact that some prostitutes used the service. What they ignored was that Craigslist very closely cooperated with law enforcement to help them find and arrest those who broke the law via the service. Of course, most AGs simply grandstanded against Craigslist, and Craigslist blocked such ads. That didn't decrease prostitution at all. It just dispersed it elsewhere, making it more difficult for law enforcement to actually stop the law breaking.

This is the crux of the issue: when you blame the service provider, rather than the actual law breakers, you don't stop the law breaking. You just make it harder to capture the actual law breakers. In almost every way it's counter productive unless the sole purpose of going after the service providers is to get yourself some headlines in which you can claim you "did something" to stop some societal ill, while actually making the problem that much worse.

While the AGs haven't let the fact that they have no legal case against tech companies stop them from holding crazy press conferences where they attack those services anyway -- what they're now trying to do is change the law so that Section 230 no longer protects service providers if the AGs bring a case. In other words, they want a special exemption so that they can now legally blame service providers for the actions of their users, rather than just verbally blame them. Law professor Eric Goldman put together a fantastic paper on why this is a horrifically bad idea and would "dramatically chill" online innovation.

Now that the AGs official letter to Congress is out, we can see that it's as bad (if not worse) than we expected. The problems start right from the very beginning:

Every day, children in the United States are sold for sex.

Yup. That's the first sentence. They start right out with the bogus moral panic. Yes, every day children are sold for sex, and yes this is a very real problem (though the claims made by the AGs are massively exaggerated). But blaming websites that are used in child prostitution efforts rather than using those sites to find and arrest those responsible isn't just irresponsible behavior by the AGs, it's downright horrifying. And yet, that's what they want.

In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade.

What they leave out is that the use of Backpage for such things only took off after the same AGs forced Craigslist to shut down such a service. In other words, shutting down such things doesn't stop the sex trafficking. It just moves it elsewhere. And, again, when state AGs find such advertisements, why aren't they using them to find and arrest those responsible?

But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies.

And for a damn good reason: because it's not those companies who are doing the sex trafficking.

This must change.

So that we, state Attorneys General, can sue innovative companies rather than doing our jobs and actually capturing sex traffickers.

It is ironic that the CDA, which was intended to protect children from indecent material on the internet,1 is now used as a shield by those who intentionally profit from prostitution and crimes against children.

No, it's ironic that 49 state attorneys general, whose job should be to find and stop lawbreakers, are instead seeking to change the law to help those lawbreakers hide online, (with a side dose of killing off important innovations that help the public).

As online advertising of child prostitution goes unchecked, sex traffickers are able to expand their businesses, magnifying the scope of the problem. In the last few months alone, law enforcement agencies throughout the nation have linked sex-trafficking operations to internet advertisers. For example, on March 28, Miami police arrested a man for advertising the sex services of a 13-year-old girl on Backpage.com. The perpetrator had tattooed his name across the girl's eyelids, marking her as his property. Two months earlier, two men were arrested in Fairfax County, Virginia for prostituting four minors on Backpage.com. And on April 10, four males and one female were arrested in St. Paul, Minnesota for running a prostitution ring of eight girls and women ages 15 to 40. The girls and women were advertised on Backpage.com.6 These examples offer just a small sampling of the countless instances of child sex trafficking that occurs every day in the United States.

Actually, no, those seem like examples of law enforcement properly using the ads on Backpage to help them find and arrest some really evil people, which seems like a good thing. Changing the law to allow the AGs to sue Backpage means that these men won't be as easy for the AGs to find and the sex trafficking will continue. How is that a good idea?

Federal enforcement alone has proven insufficient to stem the growth of internet-facilitated child sex trafficking. Those on the front lines of the battle against the sexual exploitation of children—State and local law enforcement—must be granted the authority to investigate and prosecute those who facilitate these horrible crimes.

Again, they stupidly seem to think that all they need to do is focus the blame on the internet services these sex traffickers use rather than on actually finding and arresting the sex traffickers. It's incredible. It's particularly shameful, by the way, to see California Attorney General Kamala Harris on the list, since (of all people) she should at least recognize that this simple action would do massive harm to Silicon Valley in her home state, by opening the door to stopping all sorts of user generated content innovations, due to the ridiculous threat that grandstanding attorneys general will take criminal action against them just because a user uses the tool to break the law. By the way, as far as I can tell, only one state attorney general chose not to sign the letter: Connecticut's George Jepsen. [Update: As pointed out in the comments, Virginia's AG didn't sign on either (though the AG from the Virgin Islands did). Update 2: Also Wisconsin's AG didn't sign.] I'm not sure why, but considering his predecessor, Richard Blumenthal was one of the worst bogus grandstanders against tech companies, hopefully it's because Jepsen is one of the only AGs who actually understands why Section 230 is a good thing, rather than the bogus horror that every one of his colleagues see.

Filed Under: for the children, secondary liability, section 230, state attorneys general