Saturday, August 10, 2013

State attorneys general proposals to undermine Section 230 bring up some old issues known from COPA (age verification)

Friday, I learned about a proposal by state attorneys general to cut Section 230 of the 1996 Telecommunications Act, or “Communications Decency Act”, presumably allowing service providers to be held to downstream liability standards set in individual state criminal codes.  I wrote about this in he “BillBoushka” blog yesterday immediately, and there will be a lot more to say soon. 
The issue relates to the history of COPA, however.  Part of the motivation for the states is to crack down on sex trafficking, especially of minors (often from overseas).  One of the most important provisions a few states (Washington, New Jersey) wanted was to force “classified advertisements” websites like Craigslist and especially Backpage to screen “workers” for age.  Courts have so far upheld immunity for these sites under Section 230.  There would be serious ramifications of “relaxing” this immunity for the entire web, as I explained yesterday and will explore further.   But the “age screening” requirement definitely reminds me of similar requirements for websites that had been proposed for COPA in 1998, which had attempted to replace the “censorship” provisions of the Communications Decency Act, whih the Supreme Court struck down in 1997. 
I had myself at one time thought that age screening would be feasible (when I wrote my first 1997 “Do Ask Do Tell”) book, but realized quickly the difficulties that would ensue had I been required to do this for my own “” and then “” sites, as I have earlier explained in this blog (especially the postings during the COPA trial in Philadelphia in October and November, 2006).
It might be possible for the federal government or FBI to develop a system that “classified ads” sites could use to verify ages, or that ordinary sites could use as plug-ins that users execute once when using a site for the first time with any standard operating system (Windows, Mac, Linux, and Mobile systems).  I think this is possible because I’ve discussed, on another blog, a similarly spirited proposal for a master federal system for verifications to prevent identity theft.  (Go to this link.).  I think this is possible because when I worked for ING-ReliaStar back in 1998, I developed a system component that would fit into this sort of facility, which could be run by the USPS NCOA (hint as to how it works is here.). 

The main objection to the government’s deploying such mechanisms would obviously be personal privacy and surveillance concerns, as we have seen with the recent debate on the NSA and Wikileaks.  That debate has distracted the public from paying attention to other threats to free speech, such as proposals to gut Section 230.  But deploying such mechanism might deflect the downstream liability problem and help preserve “free entry” on the Web.

It’s important to notice that the state attorneys general want the ability to implement and enforce state laws regardless of limitations on the federal government as a constitutional matter (which gets us back to discussions of the 14th Amendment and the “Incorporation Doctrine”, another good item for US history tests).  It’s important to remember that many states have or had “harmful to minors” laws that, when applied to the Internet, would have resembled COPA.  Some of these states included Virginia and New Mexico.  I think that these state laws were overturned by their respective supreme courts after the COPA decision in 2007, but I am not completely sure.  The recent letter from NAAG suggests the idea that states could try to implement their own versions of COPA and make them stand up.  

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