Congress should have borrowed from DMCA §512(c) when drafting FOSTA-SESTA
Joe Rabinovitsj is a J.D. candidate, 2021 at NYU School of Law.
§512(c)
of the Digital Millennium Copyright Act (DMCA) and §230 of the Communications Decency Act (CDA) each
provide online platforms with safe harbors for liability – copyright
infringement in the former’s case, and a variety of speech-related liability
including libel, obscenity, and hate speech for the latter – for third party
activity, originally with the intention of stimulating investment in online
businesses and platforms. FOSTA-SESTA, passed in 2018, carves out civil and criminal liability under
federal sex trafficking statutes (18 U.S.C. §1591 and 18 U.S.C. §2421A) from
§230’s safe harbor, with the goal of combatting the recent surge of sex trafficking and child
pornography occurring online.
Despite passing the
Senate with a 97-2 vote, FOSTA-SESTA is subject to two major criticisms. First,
that FOSTA-SESTA’s encroachment on §230’s otherwise expansive, unencumbered
safe harbor foreshadows further carve-outs, and creates
prohibitively high costs for online platforms, ultimately deterring investment. Second, that by incentivizing
platforms to shutter their classifieds pages (Craigslist and Reddit have already done so in the wake of FOSTA-SESTA
for fear of sex trafficking liability), FOSTA-SESTA jeopardizes sex workers’ safety by depriving them of these vital tools for
vetting clients, and ultimately pushes sex trafficking and child pornography to
the web’s deeper recesses, making enforcement more difficult.
Had Congress modeled
FOSTA-SESTA’s amendment of §230 on §512(c)’s safe harbor for copyright
infringement, it could have mollified the first criticism, pursued the goal of
curbing sex trafficking online, and deterred platforms from taking down fora
that facilitated sex workers’ safety.
A key difference between §230
and §512(c) is the latter’s knowledge requirement. §512(c)’s safe harbor only
applies if the platform lacks “actual knowledge” of third party infringement,
is unaware of smoking gun evidence of third party infringement (facts from
which a reasonable person would infer specific infringement, as in Youtube v. Viacom), or upon obtaining such knowledge or awareness
“acts expeditiously” to remove the infringing content. §230 lacks such a knowledge
condition for the safe harbor’s applicability – by providing that “[n]o
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,” in many cases §230 absolves platforms of liability even if they knew
about the unlawful content at issue.
§512(c)’s knowledge
requirement strikes a careful balance between deterring proliferation of
copyright infringement online, and reducing platforms’ risk of liability for
copyright infringement to incentivize investment. On the one hand, the safe
harbor acknowledges that to incentivize the growth necessary for platforms to
disseminate information and services widely, and facilitate connections between
users, it won’t be financially feasible for them to remove all third party content that infringes copyright. But on the other
hand, imposing a duty on platforms to remove infringing content when the
platforms either are aware of specific infringement, or smoking-gun evidence, recognizes
that many platforms are in the best position to police some (sometimes
significant) portion of infringement. This balance between incentivizing
investment in the growth of online platforms and the public interest in
copyright protection may not always be perfect, but at least §512(c)’s knowledge
requirement attempts to strike such a balance.
Congress should have used
§512(c)’s knowledge requirement as a model when enacting FOSTA-SESTA to amend
§230. FOSTA-SESTA moved from a world of virtually no liability for users’ sex
trafficking violations on platforms to a world in which platforms face criminal
liability for virtually all third parties’ violations. Bracketing the question
of whether this move will make a dent in the volume of child pornography and
sex trafficking online, this threat of liability from user activities risks
chilling investment in online platforms too much – Craigslist and Reddit have
already shuttered parts of their sites. If FOSTA-SESTA is the model for future
carve-outs to §230’s safe harbors (and many groups, including Salesforce’s co-CEO, have been calling for §230’s repeal, not to
mention further carve-outs), further moves from total immunity to liability for
all unlawful third party speech under other regimes could significantly chill
innovation online.
§512(c)’s knowledge
requirement offers a middle path between the pre-FOSTA-SESTA world of no
liability for third party violations of sex trafficking statutes, and
FOSTA-SESTA’s threat of liability for all such third party violations. Had
Congress drafted FOSTA-SESTA’s amendment of §230 such that its safe harbor only
became ineffective against the federal sex trafficking statutes with respect to
third party content the platform “knew” about or of which the platform had
smoking-gun evidence, then platforms would be incentivized to police violating
content without either burying their heads in the sand, or wholesale shutting
down forums as Craigslist and Reddit did.
Had Congress drafted FOSTA-SESTA with §512(c)’s
knowledge requirement, platforms would be incentivized to remove content and
ads most likely linked to sex trafficking, without shuttering fora through
which sex workers vet clients.
If Congress does consider
enacting further carve-outs of §230’s safe harbors, it should consider looking
to §512(c)’s knowledge requirement as a model.
