The Indecent Communications Decency Act


In George Orwell’s dystopian novel 1984, the Ministry of Peace fights wars and the Ministry of Truth tells
lies.  In the United States,
internet service providers are currently immune from prosecution for sex
trafficking carried out by third parties who use their services.  Why?  Because of the Communications Decency Act of 1996, or CDA.

To be fair to the drafters of the original legislation, they
really did intend to clean up the Internet, which was a very different place in
1996 than it is today.  Congress
passed and President Clinton signed the CDA with the intention of making
obscene or indecent web content illegal. 
But the following year, the U. S. Supreme Court agreed with the American
Civil Liberties Union that the indecency restrictions violated the principle of
free speech, and voided them.  But
the court let stand a part of the law called Section 230.

Section 230 is a classic case of unintended
consequences.  What it does is to
make internet service providers (ISPs and other analogous enterprises such as
Google and Facebook, neither of which existed in 1997) immune from liability
when they carry material provided by third parties, such as for example sex
traffickers.  The motivation for
this section can be understood if we compare the Internet to an older form of
communication, namely the newspaper.

Any newspaper that carries real estate ads must make sure
that the ads do not discriminate in ways that restrict federal law that grants
equal rights to housing.  Just to
cite an egregious example, a person can’t run an ad offering a house for rent
to whites only, or to Sikhs only. 
This is because newspaper organizations are legally the publishers of
their content, and can be held liable for whatever they decide in their
editorial wisdom to publish.

Without Section 230, ISPs would be treated like publishers
of their content, whether they themselves originated it or whether it came from
third parties.  Back in 1996,
legislators worried that if the ISPs were liable for the third-party content on
their sites, they would be reluctant to restrict it in accordance with the rest
of the CDA because this action would make them look like publishers.  So, in its wisdom Congress granted
legal immunity from liability to the ISPs, intending that this would free the
ISPs to prohibit certain types of material without worrying about being sued
for the material they didn’t prohibit. 

If that sounds like tortuous reasoning, it is.  As the Internet grew more
commercialized and sex traffickers in particular found what a boon it was to
their business, concern mounted that Section 230 was providing a loophole for
exactly the kinds of activity that the CDA was designed to prevent.  In 2013, for example, the attorneys
general of 47 states wrote to Congress asking that the civil and criminal
immunities provided by Section 230 be removed.  And just last month, a bill to do that was passed by the U.
S. House, although it now awaits action in the Senate.

In the meantime, websites such as Backpage.com use the
Internet to provide human beings for sale.  One study by the National Center for Missing and Exploited
Children found that 73% of all child sex trafficking cases that they dealt with
involved this website.  Because of
the CDA, the high-level operators of these types of exploitative sites continue
to do their evil work while making sure that the only people who get caught are
usually the victims:  the women and
children trapped in sex trafficking operations. 

You would think that Google, with its corporate motto of
“Don’t do evil,” would be on the side of those who wish to amend
Section 230 to allow prosecution of illegal and heinous activities such as sex
trafficking.  But you would be
wrong in this case.  Last August,
members of Congress received an email from Google’s public policy counsel with
the headline “CDA 230 Issue,” and asked them not to support changes
to Section 230, which the email termed “one of the foundational statutes
for the Internet.” 

If we follow the money, it is clear that a good fraction of
all advertising revenues gleaned from the Internet involve sex in one way or
another.  Probably that iceberg is
too big to tackle all at once, but its visible tip, one of the most horrendous
aspects of it, is the exploitation of homeless and stray children by the sex
industry.  There are not a lot of
moral issues on which most people agree anymore, but certainly one of them is
the fact that enticing a 12-year-old girl into prostitution is about as wrong
as you can get.  And the Internet
is now the preferred way of advertising for this kind of thing.  And Section 230 makes it very hard or
impossible to prosecute the kingpins of sex trafficking on the web.

In this blog I generally try to avoid political advocacy,
because it’s a guaranteed way to turn off approximately half my audience, at
least.  But I’m making an exception
in this case.  The National Center
on Sexual Exploitation operates a number of programs focused on ending various
kinds of sexual wrongdoing.  At
their website endsexualexploitation.org they have legislative updates about the
progress of H. R. 1865, the Allow States and Victims to Fight Online Sex Trafficking
Act, and S. 1693, the Stop Enabling Sex Traffickers Act, both of which bills
would amend Section 230 to allow state and local prosecution of those who use
the Internet to advertise their sex-trafficking activities.  If you want to do something about this
problem, email your senator soon. 
And just to let you know that I don’t give advice I wouldn’t take, I
just emailed my two senators about this myself. 



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