Backpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.”This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing anonymized email and photographs stripped of metadata.
Under the prevailing interpretation of 47 U.S.C. § 230 (“Section 230”) of the CDA, however, Backpage would be immune from liability connected to sex trafficking even though it proactively helped sex traffickers from getting caught. No matter that Backpage knew about the illegal activity and designed the site to ensure that the activity could continue without detection, Section 230 has come to its rescue. As courts have interpreted Section 230, Backpage has enjoyed broad immunity from liability arising from user-generated content.
Dirty.com is a site devoted to spreading gossip, often about college students. The site’s founder, Nik Richie, has encouraged readers to email him “dirt” on people they know. Richie pastes his favorite emails in blog posts, often alongside images showing ordinary people “scantily clad, inebriated, and unfaithful.” Posts have led to a torrent of abuse, with commenters accusing the subjects of “dirt” of having sexually transmitted infections, psychiatric disorders, and financial problems. Richie has admittedly “ruined people sometimes out of fun.” That admission is not against interest—he knows well that he cannot be sued for his role in the abuse because the onus of the abuse is on the users. Courts applying Section 230’s immunity provision have dismissed efforts to hold Richie responsible for defamatory posts that have damaged lives and careers.
Now consider the relationship between social media companies and terrorist groups. Last year, one of us (Wittes) undertook a survey of overseas groups that were formally designated as foreign terrorist groups yet still had active social media accounts. Federal law allows civil and criminal penalties for providing material support—including anything of value—to designated foreign terrorist groups. Yet numerous designated terrorist groups, including Hamas, Hezbollah, the PKK, and Lakshar-e-Taiba, openly maintained an online presence on well-known social media services, including Facebook and Twitter; several of those accounts were suspended after publication of the corresponding article. Yet because of Section 230’s immunity provision, efforts to hold social media companies responsible under the civil provisions of the federal material support statute have consistently failed.
We offer the modest proposition that Section 230 immunity is too sweeping.