Section 230 of the Communications Decency Act is a 1996 law wholly inadequate to address 21st Century problems. The most egregious example of this is online sex trafficking, which was allowed not only to exist, but also to thrive due, in large part, to §230. This Article examines the development of the jurisprudence regarding online advertising of sex-trafficking victims and juxtaposes the forces that created § 230 with those preventing its timely amendment. This Article argues that, although § 230 was never intended to create a regime of absolute immunity for defendant websites, a perverse interpretation of the non-sex trafficking jurisprudence for § 230 created a regime of de facto absolute immunity from civil liability or enforcement of state sex-trafficking laws. This phenomenon occurred despite the legislative intent behind § 230, and despite the Trafficking Victims Protection Act of 2000 (“TVPA”) and its subsequent reauthorizations.
This is the first law review article to examine the new Fight Online Sex Trafficking Act – Stop Enabling Sex Trafficking Act (FOSTA – SESTA) passed in March 2018, and signed into law in April 2018. The article not only examines this new effort, but also places it within a disturbing historical context concerning the origins and abuse of § 230. The article notes the quick willingness of Congress to respond to the desires of corporate technology interests to create § 230, but its failure to quickly respond to the pleas from victims of sex trafficking, law enforcement, states attorneys general, and the courts to amend it § 230 and preclude its abuse by online entities who knowingly partner with sex traffickers to sell victims online. The article analyzes not only why FOSTA-SESTA ultimately succeeded, but also the disturbing decades long obstacles to its common sense adoption.
Part I explains the impetus behind § 230, its history, and its text. Part II examines the rise in recognition of sex trafficking in both domestic and international law. It further summarizes the contours of sex trafficking in the modern world and the role online advertisement has played in its emergence. Part III analyzes the intersection of sex trafficking, the Internet, and § 230 and thoroughly assesses the development of jurisprudence culminating in the creation of a regime of de facto immunity. Part IV analyzes recent legislative efforts in both the House and Senate to amend § 230 culminating in the passage of the FOSTA – SESTA. It asserts that such an amendment was necessary to return § 230 to its original purpose of protecting some Internet companies from specific types of liability, without creating absolute immunity. It also cautions against the ability of technology corporations to thwart such important legislation.
Mary Graw Leary, The Indecency and Injustice of Section 230 of the Communications Decency Act, 41 HARV. J. L. & PUB. POL’Y 553 (2018).