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Section 230 Of The CDA Must Align With The 21st Century
By Demetrick Pennie | Law 360

In 1996, Congress pursued a measure to prevent children from being exposed to sexual content online. The legislative policy was outlined in 47 U.S.C § 230, formally known as the Communications Decency Act of 1996. Based on provisions outlined in the CDA, it was obvious that the legislative judgment placed the balance of free speech and business profitability above accountability for public safety and national security.

There are two key components that highlighted the weaknesses of the CDA: (1) it provided broad immunity for online providers (hosts of content) that publish nefarious third-party content and (2) it clearly sought to protect the interests of the online companies. Based on broad contradictions outlined in the CDA, Congress made clear that it wanted the courts to rely on statutory interpretation to determine criminal liability associated with online user and provider liability. Ironically, based on this indecisiveness, the law designed to protect children from abuse became the same legislation used to shield from liability online service providers that facilitate the exploitation and abuse of children.

Over the last two decades, several liability claims against online providers have been dismissed due to antiquated CDA interpretations. As decided in many of the court rulings, the conjecture involved in determining what Congress intended under the CDA was simply too complex; therefore, courts have been willing to dismiss entire cases to avoid setting precedence against the unintended purposes of the legislation. The courts' indecisiveness seems to have emboldened online service providers.

The ongoing Backpage.com LLC lawsuits present the emergent challenges that exist relative to the unregulated activities of online service providers and outdated CDA protections. Recently, Backpage acknowledged that its site is being used for child sex trafficking, but the company claims that it is immune from liability because of the CDA. However, subsequent case findings[1] have revealed that Backpage has directly been involved in the creation and distribution of content in furtherance of child sex trafficking, which makes it difficult for the company to claim immunity protection under the CDA — Backpage's actions make them a creator of content rather than merely a host as previously defended. This finding could change the entire immunity argument for online service providers that rely on CDA protection, including social media platforms like Facebook, Google (Youtube) and Twitter.

Similar to Backpage, social media companies have exposed themselves to greater liabilities and have potentially quashed their own CDA defense. Media reports have revealed that online social media platforms have facilitated terrorism while profiting from paid advertisements.[2] Under provisions outlined in two national security regulations, these platforms have provided material support for terrorism and created an emergent threat to our nation's security, thereby making them criminally and civilly liable for terrorist acts that evolve from their direct actions and lack of accountability. As outlined in 18 U.S.C 2339 (USA PATRIOT Act), in summary, whoever provides material support or resources knowing that they are to be used in preparation for carrying out terrorism are criminally liable. In September of 2016, Congress sought to strengthen this position by adding civil penalties for co-conspirators of terrorism through the Justice Against Sponsors of Terrorism Act, which in part expands the rights of private individuals to enforce federal anti-terrorism statutes against entities that enable terrorism.

This week's litigation of Gonzalez et al. v. Google Inc. et al. will prove to be a groundbreaking case that could ultimately set precedence for condemning the facilitation of terrorism online. This case has personal significance considering that it will chronicle many of the same legal arguments outlined in Pennie v. Twitter Inc. et al.

On July 7, 2016, five of my friends and colleagues were killed in an ambush-style, domestic terrorist attack in Dallas. Traumatized by the outcome and understanding the contributing factors leading up to the attack, I filed a federal lawsuit against Twitter, Facebook and Google, formally recognized as Pennie v. Twitter et al., in hopes of influencing behavior modification among the online corporate giants that have no regulatory accountability for their influences on terrorism in the country.

The central argument in these cases is that the social media platforms provided the outlet for known terror organizations to disseminate radical messages to incite violence against the general public and law enforcement. Arguments in both cases will show that the unregulated social media providers are not above the law when it comes to the facilitation of terrorism, which has real-world consequences.

Thus, we cannot continue to use antiquated defenses to deal with evolving threats to our nation's security. It is time that we enhance our regulatory policies to cope with these changing times. Legislators must be willing to see beyond the fray of financial stature and corporate arrogance as it relates to the safety and security of this nation. We can no longer sit idly by and watch families mourn the loss of their loved ones, while corporations issue apologies for neglect and mismanagement of their platforms. As a nation, we must end this pervasive cycle of unaccountability and issue a firm statement to online service providers: "No more funerals!"


Demetrick Pennie, Ed.D., is an 18-year veteran Dallas Police sergeant. He is president of the Dallas Fallen Officer Foundation and the executive director of the Texas Fallen Officer Foundation. He has taught courses at the University of Phoenix and Strayer University on ethics, criminal law and justice, terrorism and cultural diversity.

DISCLOSURE: The author's case against Twitter Inc., Google Inc. and Facebook Inc. is currently pending in the Northern District of California.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.washingtonpost.com/local/public-safety/congresswomen-press-sessions-to-investigate-sexual-ads-at-backpagecom/2017/07/13/99ebaed8-6752-11e7-9928-22d00a47778f_story.html?utm_term=.c59a82b69467

http://www.chicagotribune.com/business/ct-backpage-sex-ads-20170711-story.html

[2] http://adage.com/article/digital/eric-feinberg-man-google-youtube-brand-safety-crisis/308435/

https://www.usatoday.com/story/tech/news/2017/03/27/uk-amber-rudd-facebook-google-twitter-silicon-valley-companies-terrorism/99703250/


Originally published on Law 360:
https://www.law360.com/articles/947856/section-230-of-the-cda-must-align-with-the-21st-century

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