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Public Policy 27 September 2017

Out of the Section 230 Weeds: Internet Publisher-Providers

Mark Buell
By Mark BuellRegional Bureau Director, North America

On Tuesday, the U.S. Congress continued to grapple with the potential implications of the Stop Enabling Sex Traffickers Act (SESTA). SESTA would carve out an exception to Section 230 of the 1996 Communications Decency Act, which is considered a bedrock upon which the modern Internet has flourished. If SESTA became law, websites that host ads for sex with children would be not be immune from state prosecutions and private lawsuits [although under 230(c)(1), websites are already subject to federal criminal law statutes].

Section 230 of the Communications Decency Act (c)(1) states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 230(c)(2) protects actors who proactively block and screen for offensive material. These provisions have allowed the Internet to grow and develop without the threat of lawsuits smothering its potential. If the websites of 1990 had been liable for everything their users posted, the Internet would look very different today.

Since 1996, the Internet has dramatically changed in ways unanticipated by the Communications Decency Act. The Internet provides the platform to publish material that can reach enormous numbers of people around the world. Users do not need to go through the traditional publishing industry to be “published”. We can tweet our views, post on a blog, or upload a video to a video streaming site.

Here’s when the water becomes muddier: The technology industry must grapple with its position in between publisher and provider at all layers of the Internet “stack”. That stack includes Internet Service Providers, messaging applications, web hosting providers, algorithms, and more behind-the-scenes components that the average user doesn’t think twice about when scrolling through their Instagram feed.

How do we distinguish between which players are publishers and which are providing a service? Traditionally, a publisher would be responsible for editing and marketing the content published in their name. For many websites and applications, the enormous amount of content posted makes it impossible for them to take on this role, even if they wanted to. If a website exercises a degree of editorial control over its content, is that website therefore a publisher, and legally liable for what appears on its site?

Regardless of the correct legal interpretation, we need to ask ourselves what would serve Internet users the best. The Internet must continue to be an enabler of free speech and expression, a borderless venue for debate and discussion. For privileged users, the online experience is overwhelmingly positive. For others, online bullying, doxing, and harassment mar the online experience. Many technology companies, aware of this divide, have taken steps to address these issues. The question is, to what extent should an application be responsible for its content? Should the responsibility rest with the components that are closest to the user, like websites, or should the responsibility extend to include Internet Service Providers and others?

SESTA goes to the heart of these questions. The Internet and all its layers is neither a publisher nor a provider; it’s both. Neither Section 230(c)(1) nor 230(c)(2) reflects this reality of the state of the Internet and its underlying technologies. If the U.S. wants to remain competitive in the digital era, online provider-publishers cannot be encumbered by rules designed for the past. To preserve the free and open Internet, those debating the merits of SESTA need to keep this broader context in mind.

In August, the Internet Society joined other leading U.S. media and technology organizations in an open letter (pdf) to Senators expressing concerns about the potential unintended consequences of SESTA. At the Commerce Committee hearing last week, Senator Blumenthal insisted that “There will be no deluge of frivolous lawsuits as a result of this measure,” but that is far from certain. Survivors of sex trafficking deserve justice, but this bill is not the way to deliver it to them. We need a compromise to strengthen law enforcement efforts against sex trafficking without stifling the Internet. As part of that compromise, lawmakers would do well to seriously consider what it means to be publisher-provider and how to define their responsibilities to users.

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