David Newhoff, Author at The Illusion of More

Internet Association Wants to Encode Safe Harbors in New NAFTA

As debate over renegotiating NAFTA heats up, the copyright interests will be duking it out with the internet industry over the inclusion, or not, of “safe harbor” provisions akin to Section 512 of the DMCA and Section 230 of the CDA. In a letter dated August 31 to USTR Ambassador Robert Lighthizer, the Internet Association sang its standard refrain on the absolute necessity of these liability shields for the growth of the digital economy and the protection of American jobs that are increasingly dependent on the tech and internet sectors. No surprise there. And at least some truth.

More bizarrely, though, the letter claims that the Internet Association represents “the new faces of the American content industry, winning Emmys and Oscars, providing digital distribution for streaming-only Grammy winners, while also creating services that address the challenge of piracy by allowing consumers to legally access content globally.”

Ruth Vitale, CEO of CreativeFuture took exception to this claim in a letter of her own addressed to Ambassador Lighthizer. In her response, Vitale explains the well-documented history of the unintended negative effects of the DMCA on creative producers of every size. “Why should these provisions be in an updated NAFTA — undermining the protections for American creatives overseas?” writes Vitale. “Please don’t export a system that does nothing but shelter the most powerful internet companies, rather than the start-ups that these trade associations often claim are the beneficiaries of safe harbor.”

The only reason the IA was able to insert this plug about award-winning “content creators” is because its membership includes companies like Netflix and Amazon; but as I addressed in an older post, Netflix-like models are neither truly “internet” businesses, nor a particularly new model for content-production. Netflix is a motion picture exhibitor and producer—one that has as much interest in the copyrights vested in the products it makes as Sony or MGM.

Moreover, Netflix remains something of an unknown quantity, if we’re looking at big-picture economics. Presently, we are witnessing a period when the company is spending a fortune in raised debt to produce work at a blistering pace in order to grow fat with content in its bid for global market-share. But profitability is another question altogether; and there will come a time when the growth flattens. Netflix, Hulu, Amazon Originals, etc. are really just the new HBOs, Showtimes, and FX Networks on the block; and no matter how the landscape looks in five or ten years, there is no reason to believe that the copyright interests of the leading producers, whoever they may be, will be any less relevant than they are today. Even more to the point, the copyright framework is essential for the independent writer currently banging away on a new work that she hopes to sell to one of these entities.

Similarly, for all the talk of growth and vitality—and there is evidence of both—the major internet platforms still imply futures that cannot easily be measured by the metrics of the current market. It wasn’t all that long ago that we all jumped onto Facebook, which is now considered an essential platform for both individuals and businesses. But if my 15-year-old and her friends are any indication, Facebook’s future is questionable because these teens have abandoned the platform as a place for “old people.” This does not mean Zuckerberg and Co. won’t come up with a way to regain that market as it enters adulthood, but it does suggest that the social media market we have today may not look anything like what we will have in the relatively near future (see MySpace). And if anybody can claim to know the precise role of safe harbors in this uncertain future, then I suspect a crystal ball is somewhere in the room.

The Crystal Ball in the Room

Speaking of fortune-telling, the most substantial quote from the Internet Association letter may be the one which states that “One recent study found that weakened safe harbors for online intermediaries would eliminate over 425,000 American jobs and lead to an annual loss of $44 billion in US GDP.” Sounds compelling if nobody reads the study, which the IA can assume will be the case. But I read the study (which was not surprisingly commissioned by the Internet Association) authored by Christian M. Dippon, PhD at the private firm NERA Economic Consulting.

While stipulating that I may be undervaluing some aspect of Dippon’s work, the general approach of the study hopes to provide evidence to support this conclusion: that altering (i.e. weakening) safe harbors would lead to crippling litigation that would then result in higher prices passed onto consumers. This would in turn reduce demand for certain services, costing jobs and investment in the otherwise robust tech and internet sectors. Both the premises and the research appear flawed.

For one thing, it is false to assume that readjusting corporate liability through legislative reform can only lead to “crippling litigation.” To the contrary, if the statutory provisions of the safe harbors were amended to restore their original intent while mitigating their unintended harm, this would more likely lead to changes in the best practices of those corporations seeking to avoid liability than it would inexorably lead to more litigation. It is in fact the worst practices of many service providers where rights-holders find fault—practices that have often been obscured by the dysfunctional DMCA as a tool of enforcement.

In fact, the lack of rigor in the study in this regard is revealed by its reference to the BMG v Cox case as exemplary of the kind of litigation that would supposedly run amok under an amended safe harbor regime. Having acknowledged in the early part of his paper that DMCA is a conditional shield for service providers, Dippon then fails to recognize that Cox lost that case precisely because it failed to meet those statutory conditions. Given that the internet industry has tried to portray Cox in a similar light, its emphasis in this study suggests that the IA perhaps fed NERA this example and that nobody at NERA did careful research into the case.

Specifically, the study seeks to support its conclusions by means of consumer surveys on the use of search and cloud storage services, determining that a rise in prices for cloud storage would reduce demand for these services; and determining that increased exposure to more intrusive advertising would reduce the demand in search. These increases in prices and/or intrusive advertising are assumed to result from the aforementioned increase in litigation, which is itself highly speculative.

Perhaps most telling is that in order to calculate the potential price increase for cloud storage, the author references MP3Tunes, which was found guilty of copyright infringement and paid damages of $41.5 million. Perhaps this case would be a valid baseline if it were not possible for consumers to use a cloud storage service that is not also in the copyright infringement business. But this is not a reality.

For instance, like a lot of consumers, I use Dropbox, which is neither in the infringement business nor presently more vulnerable to litigation as a result of the MP3Tunes outcome. This legal storage business will also not be more vulnerable to litigation under the kind of amended safe harbor regime rights holders seek domestically; and it especially would not be more vulnerable to litigation if we do not transpose our current safe harbor language into new trade agreements.

There are a number of large leaps, assumptions, and omissions in the NERA study, despite IA’s leaning on it to predict potential economic losses like 425,000 jobs. For instance, while it is true that a high-paying tech job does support several other jobs in the economy, this is too broad a view to take without also accounting for the ways in which several of the IA member companies simultaneously threaten many jobs in various sectors.

While exporting the safe harbor provisions through FTAs may be of tremendous value to a provider like Google, one cannot take the “job-killer” position seriously without weighing the unprecedented market power of these near monopolies and their capacity to bully the diverse, entrepreneurial middle class on which the economy actually depends. And that brings us back to the rather insulting notion that these companies represent the “new face of content.”

Inherent Contradiction

Frankly, the Internet Association making this claim is kind of like a state highway department saying it’s the “new face of farming” on the grounds they build and maintain the roads that get food to market. That’s not just me being flip; it’s a comment on the nature of how the safe harbors are meant to function. Remember that the safe harbor provisions are predicated on the assumption that the service provider is not in the content business but is rather in the highway-building business and, therefore, not liable for how people might use the highway.

That’s an analogy the internet industry has employed for years to explain their neutral status vis-a-vis liabilities for copyright infringement and other claims. And I have to say it takes a deft bit of rhetorical salesmanship to imply to the USTR that these liability shields have substantially contributed to the growth of content-producing platforms like Netflix or the production division of Amazon. The DMCA safe harbors contributed like crazy to the growth of infringe-now-settle-later models like YouTube, but that’s apples-and-oranges relative to a Hulu winning awards for a major production like The Handmaid’s Tale. Meanwhile, for all the successful YouTubers out there—and they do exist—that’s still not an economy; and the day it becomes the economy, we’re screwed because one company owns the whole damn thing.

So as the rhetoric flies across social media about the absolute necessity of safe harbors to protect free speech, innovation, and jobs, readers should keep in mind that copyright is fundamentally predicated on the right of the individual to exploit his own creative labor, while safe harbors are based on limiting the liability of giant corporations, which has so far enabled them to infringe the rights of many individuals. So, I agree with the Internet Association that “balance” is key in these provisions, but I disagree with their assertion that the status quo has achieved anything of the kind.

Image sources:

Digital Umbrella by maxkabakov

NAFTA Map by michal812

Crystal Ball by Kzenon

KinderGuides & Copyright: A Tale of Wishful Thinking

An important and instructive decision was handed down this week by New York District Court in the KinderGuides case. KinderGuides is a series of children’s books that include adaptations of classic works with some commentary about the authors and the stories. Publisher Moppet Books has released illustrated, young-reader versions of works from the public domain like The Odyssey and Jane Eyre. But when they decided to launch a series of modern American classics still under copyright, this prompted litigation by rights holders who had not licensed their works to Moppet for adaptation.

At issue were Hemingway’s The Old Man and the Sea, Truman Capote’s Breakfast at Tiffany’s, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001: A Space Odyssey. The suit against Moppet was filed by a group of plaintiffs including Penguin Random House, Simon & Schuster, and the estates or trusts of the four authors. Now, before we ask the very reasonable question as to whether the Capote and Kerouac books in particular belong on a young child’s bookshelf in any form, hold that thought while we address the copyright story because it’s a lulu.

Moppet is the business venture of Frederick Colting and Melissa Medina. In 2009, Colting was successfully sued by the estate of J.D. Salinger for publishing an unauthorized sequel to The Catcher in the Rye. The New York Times reported in January, “Given the suit field by the Salinger estate, some in publishing were surprised that Mr. Colting would publish children’s versions of copyrighted works.”

What I find particularly striking about Judge Rakoff’s opinion in this case is that we can infer from his wry rejections of the defendants’ logic a narrative in which Moppet hoped to translate personal and generalized criticisms of copyright law into a series of affirmative defenses for having broken the law. Rakoff was unequivocal in his dismissal of all of Moppet’s arguments, using terms like “absurd theory,” “exercise in sophistry,” “no support in applicable law,” and my personal favorite, “Implicit in defendants’ argument, then, is a contention that the Copyright Act itself is unconstitutional.” Suffice to say, Moppet did not have a good day in court. But let’s look at some of the important issues.

Substantial Similarity

In order to infringe the right of reproduction in regard to this kind of adaptation, the plaintiff must show that the new work is “substantially similar” to the original. So, if a short and sanitized story about a girl named Holly Golightly contains essential elements from Truman Capote’s novel, then it will be considered “substantially similar” to the original under the law. Bizarrely, though, Moppet tried to argue that the characters and narratives in all four of the novels were “stock” elements not protected by copyright. For instance, it appears they tried to claim that Holly is just any “small town girl with a tough past.”

This is an inscrutable claim coming from a publisher that aims to produce and sell children’s versions of classic literature. Because if there were truly no “substantial similarity” to the original, as they tried to argue—if the Holly they presented in their version bore no resemblance to Capote’s character living out Capote’s narrative—then, Moppet would probably be guilty of fraud—and possibly infringement of Capote’s right of publicity—because they would be selling their customers a book that has nothing whatsoever to do with Breakfast at Tiffany’s. You can’t have it both ways; either it’s an adaptation or it’s a different story.

From Rakoff’s remarks, it seems the defendants tried to argue that the creative expressions in the novels are “fictional facts,” which were then “summarized” in the KinderGuide books. This is the part Rakoff called an “exercise in sophistry.” Legitimate summaries, as one might find in a book review, literary criticism, or a Cliff’s Notes type study guide, are patently distinct from adapted retellings of the stories themselves. What KinderGuides produced were illustrated, children’s adaptations of the novels, which makes them “derivative works” under copyright law, rather than “guides” or other forms of comment about the novels.

Derivative Works

A rights holder retains the exclusive right to prepare derivative works (§106 (2)), which includes various types of works that are “based on the original works of authorship.” So, products like film adaptations of novels, fictionalizations of non-fiction works, sound recordings, spin-offs, sequels, and translations are all examples of works that only the author has the right to prepare or license others to prepare. And this would naturally include children’s versions of novels that were originally written for adults.

The term “based upon” can be confusing because fair uses and new expressions are “based upon” works all the time. Here, Judge Rakoff makes the distinction by reference to a case in which a Harry Potter Encyclopedia was held not to be a derivative work:

“A work is not derivative, however, simply because it is ‘based upon’ the preexisting works. Only works that are ‘recast, transformed, or adapted’ into another medium, mode, or language while still representing the ‘original work of authorship’ are derivative.

Here, though defendants’ Guides add additional material at the end, specifically a few brief pages of “Analysis,” “Quiz Questions,” and information about the author, they are primarily dedicated to retelling plaintiffs’ stories. Two pages of analysis do not convert the Guides overall – which are largely composed of “Story Summaries” – into something that no longer “represents the original work of authorship.’”

We see this happen with some frequency in the digital universe where repurposing content is relatively cheap and easy. A party wants to capitalize on the brand value of a notable work by making a use that infringes copyright, but they hope that some minimal measure of addition or change to the original work will meet the standards of fair use. In fact, Rakoff’s opinion states that Colting and Medina “‘went to great lengths’ to achieve fair use protection,” implying that they made decisions based on how they believed fair use works (or how an attorney mis-advised them) but with little understanding of the actual doctrine.

Judge Rakoff held that defendants would be unlikely to prevail in weighing all four factors of the fair use test, stating, “Fair use…is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.” Even with my limited experience in the world of copyright law, I can imagine that quote will be cited in many fair use cases to come. It is one that should resonate with bloggers, YouTubers, and other digital-media creators who frequently imagine various uses to be fair uses when they are not.

Copyright is Not a Use-It-Or-Lose-It Right

One of the most important lessons in this case is revealed in the consideration of the fourth fair use factor, which weighs the potential market harm to the original works of authorship. While it is reasonable to think that a children’s version of a classic novel should have either no negative impact—or even a potentially positive impact—on sales of the original works, this is not the question on which the matter turns.

The exclusive rights in copyright, including the preparation of derivative works, are a not a use-it-or-lose-it proposition. The author retains the right to change his mind and, for instance, prepare derivative works at any point during the term of copyright protection. That right includes preventing the preparation of derivative works that the author or his assigns believe to be inappropriate uses of the original works.

Based on Judge Rakoff’s opinion, it seems that Colting and Medina were of the opinion that because the rights holders of these novels had not yet prepared children’s versions of these decades-old books, that some sort of limit had been reached, which should allow them to create their KinderGuides versions. This reads as an attempt to argue that the defendant’s opinion that copyright terms are too long is the same thing as an affirmative defense for infringement. “Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them,” stated Rakoff shortly before he opined that the defendant’s argument in this regard is tantamount to calling the copyright act unconstitutional.

Value to the Public

This rather arrogant assumption that the right to exploit a work in a specific way should devolve from the rights holders as a consequence of non-exploitation raises a question of value for me that is separate from—but adjacent to—the copyright issues. As a parent who is reasonably well-versed in the literary arts, I’m skeptical about the value KinderGuides would be providing in this particular case. If Kerouac-Lite existed, I don’t see why I would buy it for my kid.

As described in an older post, I remember being a new parent in the 1990s when the market exploded with billions of dollars worth of products and services designed to mold our children into geniuses. It became necessary to step back from all that frenzy and think about which choices are truly in the interest of the child in contrast to those which more likely appeal to the egos of the parents.

In fact the 2016 New York Times headline announcing Moppet’s foray into American classics virtually echoes this tension between parent ego and child education. Forget ‘Pat the Bunny.’ My Child Is Reading Hemingway, it says. The notably careless mention of Pat the Bunny, which is a pre-reader’s tactile book, brings back memories of getting swept up in the marketing of things my kids don’t actually need. One does not segue from Pat to Papa quite so rapidly. And my instinct is that one shouldn’t.

My personal view in this regard is that children’s versions of works that may be described as foundational building blocks of literature and culture—The Odyssey, the Bible, Shakespeare, Norse Myths, Little Women, etc.—can be tremendously valuable. While the 6-12-year-old is still learning fundamental literacy like spelling and grammar, this is a good time to introduce simplified versions of ancient stories and themes they will later discover resonating throughout their reading experiences. At least that’s the hope.

But publishing children’s versions of novels like On the Road or Breakfast at Tiffany’s in particular smacks of market opportunism with dubious educational value, especially in contrast to the wealth of great literature written purposely for children. It’s not that it wouldn’t be possible to legally write the children’s version of a story about an “American geisha” (as Capote described Holly Golightly), so much as one has to wonder why one would do so. Thankfully, Judge Rakoff offers a sober and informative opinion regarding KinderGuides’ efforts before they get any ideas about the works of Anaïs Nin.

Taking a Serious Look at SESTA

Well, here we go. The internet industry, with its cortege of hyperventilating helpers, is shouting censorship at the prospect of passing Senate Bill 1693, known as the Stop Enabling Sex Traffickers Act (SESTA). With its usual flair for nuance, the Electronic Frontier Foundation declares that the measure would SPELL DISASTER FOR SPEECH AND INNOVATION. Again.

There is, of course, nothing wrong with defending speech and innovation, but there is a lot wrong with doing so while overlooking the fact that the internet does foster unintended negative consequences, like fake news or the ability to innovate new ways to commit old crimes. As usual, the issues constituent to SESTA require more serious consideration than the standard talking points on the theme that Section 230 of the Communications Decency Act (CDA) is sacrosanct and that any amendment to it will necessarily destroy all that is good and great about cyberspace.

In fact, this story is clouded by a number of complex topics, including some questions that remain unanswered. As such, this post is not a full-throated defense of S. 1693, but rather an attempt to unpack some of the overlapping issues. Whatever the practical pros and cons may be of passing this bill, though, the one thing that seems certain is that the internet will be just fine. Whatever that means. For context, it’s worth remembering that many of the legal remedies called for in SOPA (which was going to destroy the internet in 2012) have been applied in specific cases worldwide, and still the internet hums along. Or screams. Or whatever it does.

Section 230 of the Communications Decency Act

I’ve written in some detail about CDA 230 in other posts, but here’s a refresher:

The liability shield provided to ISPs by Section 230 came about as an effort to incentivize good samaritan behavior on the part of online service providers. Simply put, if the ISPs and web platforms would take action to prevent “obscenity” and “sexual exploitation of children” from appearing on their platforms, taking this action would not consequently place the providers in the role of “publishers,” which would otherwise make them subject to liabilities for various third-party content posted by users.

Since its passage in 1996, Section 230 has been the foundation of the principle that service providers are generally held harmless for any civil or criminal liabilities that may result from the actions or speech of their users. As a simple example, if I commit libel on this blog, the harmed party may not successfully sue WordPress.

On the other hand, even in cases where site owners are clearly or allegedly taking affirmative action to control the content on their sites (i.e. playing the role of publishers), defenses of blanket protection under CDA 230 have been argued in court and have been supported by the internet industry as well as organizations like EFF. This refers to the Backpage story, but more on that below. (Also see this post about Yelp!.)

S. 1693 Proposal

The Stop Enabling Sex Traffickers Act (SESTA) is a bi-partisan bill introduced by Senator Portman (R-OH). The substantive change to Section 230 of the CDA would add language pertaining to anti-sex-trafficking to sub-section (e)(1). This is the part of the statute stating that 230 has “no effect on criminal law.” The statute already singles out “obscenity” and “sexual exploitation of children” apropos the CDA’s original intent, and 1693 would add language explicitly stating that Section 230 shall not be construed to impair the enforcement of laws prohibiting “sex trafficking of children; or sex trafficking by force, threats of force, fraud, or coercion.’’

The EFF states that this language will “… expose any person, organization, platform, or business that hosts third-party content on the Internet to the risk of overwhelming criminal and civil liability if sex traffickers use their services.” Assuming this declaration alone were true, let us at least clarify that even if the amended CDA were to result in an uptick of trafficking victims attempting to sue the likes of Facebook, Google, and Twitter (and that’s a huge IF), this would in no way “spell disaster for speech and innovation online.” It’s a bit like claiming that if GM were sued in a class-action for some kind of passenger-safety negligence, then all automotive innovation would consequently come to a halt.

To read the EFF rhetoric in defense of “small internet businesses,” one might get the idea that sex traffickers can easily exploit any type of platform unbeknownst to the owners and thus threaten the site owners with liability for a crime they didn’t commit. How that would happen in the real world, though, is hard to fathom. A platform would have to be fairly large, like Facebook or YouTube large, for traffickers to exploit the site for any period of time before being caught by its operators. At that point, as long as site monitors take appropriate action to remove material and/or notify law enforcement, the liability shield of Section 230 is still in force.

All 1693 appears to do is state that platform operators are no more allowed to facilitate sex trafficking than they are allowed to host child pornography. Note the absence of child porn on legal web platforms and the endurance of speech and innovation. More specifically, sex traffickers are going to operate via sites that are already involved with the sex trade, which is not the majority of websites.

Efficacy in Fighting Trafficking

Whether or not a bill like 1693 can have an actual effect on mitigating sex trafficking is a far more complex and critical question than whether or not this amendment to the CDA would have the chilling effects implied by EFF and others. Unfortunately, the very reasonable questions about efficacy are being exploited by the internet industry as a “right goal, wrong solution” talking point. In this regard, I believe the track record speaks for itself: these parties typically reject both legislative and voluntary measures out of hand when it comes to mitigating various type of harm caused via web platforms. So, it is hard to take their objections without a big chunk of salt.

Several of the usual suspects critical of SESTA have picked up on a new paper written by Professor Alexandra Levy, an expert in human trafficking at Notre Dame Law School. Titled The Virtues of Unvirtuous Spaces, Levy asserts that measures like shutting down “adult” sections of websites and/or by holding the site operators accountable for trafficking that may occur via their sites, we may lose opportunities to identify and rescue victims. In a nutshell, Levy contends that “adult” sites like Backpage make trafficking visible to the public and to law enforcement when it would otherwise be less visible while still occurring at the same scale. So, if a bill like 1693 would indeed result in fewer victims being rescued, Levy argues, then it is simply bad policy.

It’s hard to disagree with that premise, but the core question she asks demands an answer based on data; and her paper falls short, in my view, with regard to solid evidence. While it is undoubtedly true that public postings in an adult section of a website must expose criminal activity and, therefore, lead to liberation of victims and arrests of traffickers, the question Levy’s paper does not adequately address is whether or not certain sites have fostered an increase in trafficking overall by providing low-risk opportunities for traffickers and “customers” that otherwise would not engage in trafficking. If certain websites have led to a substantial increase in trafficking, while also resulting in a handful of victims being rescued, this is not a net positive.

Levy does question whether trafficking overall is in fact on the rise or if only reports of trafficking are on the rise, but absent clear data to answer exactly this question, she still draws the reader to conclude that it is better to have sites where trafficking may occur than it is to vilify the sites and their owners. She may be right, but her paper seems overly reliant on anecdotal evidence to support this conclusion. Moreover, Levy relies considerably on a narrative in which prudish legislators, attorneys general, and citizens may be acting on a desire to hide unsavory behavior more than they are interested in saving victims from criminal activity. In this sense, S. 1693 is portrayed as legislative theater—motivated by an eagerness to show that action is being taken and to blame someone for the deplorable crime of trafficking.

Levy suggests that website operators make easy targets with the added bonus that, if their sites are shut down, the problem seems to vanish when it really doesn’t. She may be correct in her assumptions about some of the characters in this overall narrative, but her overemphasis of this theme strikes me as a distraction from the central question. Either certain sites drive an increase in trafficking or they don’t. In either case, despite the internet industry pundits’ trotting out Levy as a reason to leave 230 alone, her arguments — right or wrong — are not necessarily relevant to amending the statue. And that brings us to Backpage.

The Backpage Question

The only issue at hand with regard to the operators of Backpage is whether there is substantial evidence to show that they took affirmative action to control the content of their site. If so, this should vitiate their liability shield under Section 230 and leave them open to both criminal and civil litigation. If law enforcement, Congress, or an AG can prove that the operators acted as “publishers,” the CDA is no longer a defense; and if the government can further demonstrate that the parties knowingly took affirmative action which either contributed to trafficking, or engaged in willful blindness to trafficking, these are criminal acts.

Hence, Levy’s proposal that a site like Backpage may lead to some amount of interdiction, while worthy of discussion in a certain context, is irrelevant apropos the criminal conduct (or not) of the Backpage owners. (To put this in another context, if the manager of a child services organization rescues ten thousand kids and only molests five of them, guess what’s going to happen.) More specifically, it is very hard to see how Congress’ singling out sex trafficking in the CDA, while leaving the rest of the statutory mechanisms in place, is informed much by Levy’s paper at all. Either the operators of Backpage committed crimes or they didn’t, regardless of any unintended benefits of the site’s existence.

(I wish to make it clear that I have no view at this time as to the guilt or innocence of the site owners at Backpage. That’s an ongoing investigation, and due process must be respected. The emphasis on possible criminality in this post is in the service of making points about the CDA.)

In October of last year, I wrote about the arrest and the indictment against Backpage CEO Carl Ferrer and two of his associates. At the time, the evidence seemed fairly damning, but by the end of the year, a California Superior Court dismissed the felony charges against all three. This July, The Washington Post reported that new evidence has come to light indicating that the site operators have been active participants in directing the sex-trade content of the site. The Post also reports that early in 2017, a Senate subcommittee investigation revealed that the Backpage operators had been editing “adult” ad language to disguise incidences where underage girls were involved.

The “adult” ads are the source of Backpage’s millions in revenue; the ads for toasters and car parts, etc. are free while the “adult” ads are paid. So, there is no question that Backpage is in the sex business; the question is whether or not they’ve ever been in the trafficking business, too. It is admittedly a very blurry area, where the consensual sex trade, consensual hook-ups without trade, and sex trafficking all intersect.

It’s easy to get lost in the emotional responses to the themes in this story—from revulsion to a depraved criminal act to myriad views about sex in general. And then, along comes the EFF and the internet industry crying censorship and labeling S. 1693 yet another existential threat to the almighty internet. I believe we can have a very high degree of confidence that the bill presents no such hazard to the web, even if we don’t have sufficient evidence to determine whether this amendment itself would help mitigate trafficking or worsen the plight of victims — as Professor Levy suggests would be the case.

Section 230 was never meant to be a blank check, despite many internet advocates’ attempts to portray it as such. If nothing else, that’s what Congress seems to be saying with this bill; and the internet industry might want to consider how far they’re going to press the theory that the law was ever meant to shield criminal conduct. To the contrary, this section of the CDA began as an effort, for better or worse, to protect children from exploitation; and if it is proven that a few site owners willfully facilitated the exploitation of children, the Googles and Facebooks of the world might want to worry less about their liability exposure and more about the commitment to be the good samaritans that the law they cherish actually requires.

Author: David Newhoff