State AGs Ask Congress to Gut Critical CDA 230 Online Speech Protections

Earlier today, 47 state attorneys general asked Congress to severely undermine the most important law protecting free speech on the Internet. In a letter to Congressional leaders, the AGs asked Congress to amend Section 230 of the Communications Decency Act -- which protects online service providers from liability for the vast majority of what their users do -- to carve all state criminal laws from the statute's protection. The letter highlights long-cited concerns about the use of the Internet by child sex traffickers, legitimate concerns shared by law enforcement officials and advocates who dedicate significant time and resources towards fighting this practice.

In their enthusiasm, however, the AGs have gone far, far beyond these concerns by asking Congress to gut existing protections and put online platforms and the diverse array of legitimate speech that they enable in harm's way. Moreover, unfortunately, the AGs' letter is also remarkably misleading, not only about the nature and purpose of Section 230 but also about the state of the law and -- by not mentioning it at all -- the consequences of their proposal. Their approach is wrong, and dangerously so, but even if the AGs disagree and want a debate about how state criminal laws fit into the regulation of the Internet, they owe the public a more honest discussion.

First, while Congress indeed passed the Communications Decency Act in large part to encourage the removal of "indecent" content, it did so as part of a much larger legislative package that affirmatively ensured that the dynamic nature of the Internet was not sacrificed. In addition to barring the dissemination of indecent materials to minors (a requirement that was promptly struck down on constitutional grounds by the Supreme Court in 1997), Congress separately built powerful structural protections to guide the development of the Internet over time: service providers would be clearly protected from liability (in a minimally-regulatory and uniform national manner) based on most user behavior, but if service providers wanted to voluntarily remove objectionable content, they could do so without fear of legal consequences. These protections, enshrined in Section 230 of the CDA, have protected a diverse range of providers -- companies and individuals who did not directly participate in the creation of illegal content, from ISPs to web hosts to domain name registrars to operators of individual websites -- from the persistent threat of liability for the better part of two decades. The vast proliferation over that time of services that allow not only Americans but individuals throughout the world to engage in protected speech for little to no cost is due in very large part to the existence of Section 230's clear and categorical protections.

The AGs, however, tell a different and remarkably selective story, one in which they assert that the CDA solely "was intended to protect children from indecent material on the internet" and recite legislative history out of context to imply that "encouraging" service providers to "do everything possible" to protect children from offensive material meant something less like clearing a legal path for providers to be good corporate citizens than threatening to throw them in jail if they didn't get with the program. Indeed, the letter implies that it is only as "it has most recently been interpreted" that the CDA "prevents State and local law enforcement agencies from prosecuting" online providers such as online classified sites who did not directly author offending material. To the contrary, not a single court has ever ruled otherwise in the radical manner that the letter suggests would be appropriate.

Second, while the attorneys general focus only on trafficking laws and portray their suggested amendment as a minor alteration that would not fundamentally alter the legal landscape, the reality is anything but. Passed as part of a national policy that makes only a handful of exceptions for certain federal laws, Section 230 ensures that service providers who host or disseminate content from users from across the country and the world have a single set of minimally-invasive rules. By contrast, the AGs' proposal would effectively make service providers -- from Facebook to a solo blogger -- responsible for enforcing every relevant state and lo