New Law Weakens Section 230 Immunity
Two events may change the rules for interactive website operators: (1) the FBI seizing Backpage.com and (2) the enactment of SESTA/FOSTA, amending CDA Section 230 immunity.
The FBI’s seizure of Backpage.com, an online classifieds site that includes ads for escort services, arose out of an Arizona federal grand jury’s indictment of seven Backpage executives on 93 counts including charges of facilitating prostitution and money laundering. The indictment alleges that some Backpage ads feature child victims of sex trafficking and that encounters arranged through the site have resulted in kidnapping, injury, and even death. Backpage.com’s official policy is to monitor postings to exclude illegal activity. However, the site’s monitoring process (which includes removing text or images that suggest illegal activity and editing out code words for child exploitation) may have simply sanitized illegal submissions rather than exclude them or appropriately report them to law enforcement or the National Center for Missing and Exploited Children.
When previously faced with allegations of misconduct, Backpage.com successfully raised Section 230 of the Communications Decency Act (“CDA”), which provides interactive websites with immunity from liability for content posted by third parties. This immunity was limited last week when President Trump signed the Stop Enabling Sex Traffickers Act / Allow States and Victims to Fight Online Sex Trafficking Act (“SESTA/FOSTA”). SESTA/FOSTA amends CDA Section 230 to exclude websites that “promote or facilitate prostitution” or act “in reckless disregard of sex trafficking.” While proposed as a tool to help State Attorneys General and individuals sue websites that facilitate sex trafficking, critics of the law note that it could be used to more broadly censor online speech. The law imposes penalties including fines and prison terms of up to 25 years for aggravated violations.
In passing SESTA/FOSTA, Congress noted that Section 230 was never intended to provide legal protection to websites that facilitate prostitution and that “websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.” However, the amendment to Section 230 may not have been necessary to target sites like Backpage.com, as the FBI raid occurred independent of and prior to the law’s enactment.
While it is not yet clear exactly how the Backpage.com case and SESTA/FOSTA will impact other interactive websites, steps to limit risk include:
- Know whether your site may be used to facilitate illegal activity and employ measures to mitigate it;
- Do not process payments for illegal activities;
- Establish consistent monitoring processes and train content reviewers for compliance with company policies and the law;
- Review monitoring processes and guidelines at regular intervals and update as needed; and
- Identify and escalate high-risk content for legal review.