If Congress had done in almost any other setting what it’s done to online speech, the unconstitutionality would have been immediately apparent.
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Editor’s note: This piece is in part a modified excerpt from the author’s book, “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls,” available from Penguin Random House on August 13, 2019.
On Feb. 25, a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard oral argument in Force v. Facebook, a case about whether Facebook can be held liable for the use of its platform to coordinate and encourage violent attacks by users linked to Hamas.
On Thursday, Sept. 6, Twitter permanently banned the right-wing provocateur Alex Jones and his conspiracy theorist website Infowars from its platform. This was something of the final blow to Jones’s online presence: Facebook, Apple and Youtube, among others, blocked Jones from using their services in early August. Cut off from Twitter as well, he is now severely limited in his ability to spread his conspiracy theories to a mainstream audience.
The 2018 “techlash” shows no sign of slowing. The last week of July saw the release of two papers containing proposals for significant increases regulation of tech companies, particularly with an eye toward protecting the integrity of political processes and elections.
The Electronic Frontier Foundation has filed a lawsuit challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), on behalf of two human rights organizations, the Internet Archive, and two individual plaintiffs. FOSTA creates a loophole in the immunity granted to internet platforms for third-party content under Section 230 of the Communications Decency Act: under FOSTA, websites can be held liable for promoting or facilitating prostitution. Plaintiffs seek to declare the law unconstitutional under the First and Fifth Amendments.
Section 230 of the Communications Decency Act is critical to Facebook’s existence. Under Section 230, the platform is immune from liability that might otherwise be incurred from its users’ posts.
FOSTA: The New Anti-Sex-Trafficking Legislation May Not End the Internet, But It’s Not Good Law Either
Amid the chaos of the last week, one of the most significant pieces of internet legislation of the last two decades went relatively unnoticed.
Not so long ago, it was hard to find anyone who thought regulating Silicon Valley was even possible, let alone a good idea. Deference to the technology industry was such that companies were sometimes even applauded for baldly violating existing regulations. Think of the early days of Uber, whose “innovative” business model relied on running over transportation regulations and dealing with fines and lawsuits later.
On Lawfare's feed at Foreign Policy, I wrote about how the progress of the "Stop Enabling Sex Traffickers Act of 2017" may signal the beginning of the end of technology companies' protection from liability for user content. The piece begins: