Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong

drudge sirenWhen introducing the Stop Enabling Sex Traffickers Act of 2017 (S. 1693, the Senate’s anti-Section 230 bill), Sen. Portman said (emphasis added):

There are some groups who have been critical of this effort to hold backpage accountable and stop this online exploitation. They have suggested that this bipartisan bill could impact mainstream websites and service providers—the good actors out there. That is false. Our bill does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits. That is in the legislation and needs to be in there.

This positioning makes it sound like websites who object to SESTA are overreacting–why should they complain if they still have immunity? Unfortunately, Sen. Portman’s statement is flat-out wrong, and it’s such an egregious mistake that it makes me question if he and his co-sponsors actually understand the language in their bill (or Section 230, for that matter).

Section 230 has two main operative provisions. Section 230(c)(1) says websites aren’t liable for third party content. Section 230(c)(2) says websites aren’t liable for filtering content they consider offensive. Sen. Portman’s statement indicates that he thinks SESTA would create new exclusions only to Section 230(c)(1) and would not amend 230(c)(2). However, the bill clearly changes both 230(c)(1) and 230(c)(2) equally.

Section 230(e) enumerates four modifications to the immunity, including Section 230(e)(1), which the bill would amend to read (new language bolded):

Nothing in this section shall be construed to impair (A) the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, Section 1591 (relating to sex trafficking) of that title, or any other Federal criminal statute or (B) any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting (i) sex trafficking of children; or (ii) sex trafficking by force, threats of force, fraud, or coercion.

The bill also would create a new Section 230(e)(5):

No effect on civil law relating to sex trafficking. Nothing in this section shall be construed to impair the enforcement or limit the application of section 1595 of title 18, United States Code

The added language to Section 230(e)(1) and the new Section 230(e)(5) would expose Internet services to countless new enforcement actions by state law enforcement and civil plaintiffs.

Notice how both Section 230(e)(1) and the proposed Section 230(e)(5) start off with the statement: “Nothing in this section shall be construed to impair…” The only possible reading of “nothing in this section” is that it refers to all of Section 230, including both Section 230(c)(1) and (c)(2). I didn’t find any cases interpreting what “this section” means, but I found several cases implying that Section 230(c)(2) is subject to Section 230(e)’s exceptions. See, e.g., e360Insight, LLC v. Comcast Corp., 546 F.Supp.2d 605 (N.D. Ill. 2008); Holomaxx Technologies v. Microsoft Corp., 783 F.Supp.2d 1097 (N.D. Cal. 2011); Milo v. Martin, 311 S.W.3d 210 (Tex. Ct. App. 2010) (concurring opinion); Davis v. Motiva Enterprises, L.L.C., 2015 WL 1535694 (Tex. Ct. App. Apr. 2, 2015). Applying standard methods of statutory construction, Section 230(c)(1) and (c)(2) are equally affected by the existing and proposed Section 230(e) exceptions. As a result, Section 230(c)(2) would not limit any new enforcement actions unleashed by the proposed amendments.

[Note 1: Gucci America v. Hall & Associates, 135 F.Supp.2d 409 (SDNY 2001) contains a sentence saying: “Immunizing Mindspring from Plaintiff’s claims, therefore, would “limit” the laws pertaining to intellectual property in contravention of § 230(c)(2).” Although this language seemingly confirms my analysis, I believe the Section 230(c)(2) reference is a typo. The court meant to say 230(e)(2), a correction noted by Ford Motor v., 2001 WL 1176319 (E.D. Mich. Sept. 25, 2001) when quoting this exact language.]

[Note 2: a few cases, including the Seventh Circuit’s Doe v. GTE and Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist cases, have suggested that Section 230(c)(1) acts as a definitional section for Section 230(c)(2). These cases make a strained reading of the statute, but they also would further undermine Sen. Portman’s statement because, under this reading, Section 230(c)(2) would be the only operational immunity the bill could amend.]

Because I don’t see any possible way of interpreting the statutory language to say that Section 230(c)(2) is subject to different exclusions than Section 230(c)(1), Sen. Portman’s claims to the contrary appear to be a misreading of the existing statute or a misunderstanding of how the bill fits into the existing statutory language. Of course, Congress could easily effectuate Sen. Portman’s claim through different drafting. Instead of preceding Section 230(e)(1) and (e)(5) with “Nothing in this section…” the amendment could say “Nothing in Section 230(c)(1)…” thereby making Section 230(c)(2) not subject to those exclusions.

There is another problem with Sen. Portman extolling Section 230(c)(2)’s protection: it’s basically a defunct safe harbor that does not provide much protection from “frivolous” lawsuit. Unlike Section 230(c)(1), Section 230(c)(2) has a good faith requirement, i.e., to qualify for the safe harbor, the website’s filtering decisions must be made in good faith. Plaintiffs can, and routinely will, allege that the defendant made a filtering decision in subjective bad faith, and courts routinely let those generic and unsupported allegations defeat a motion to dismiss. Thereafter, plaintiffs can do expensive and intrusive discovery into the website’s subjective intent, raising defense costs substantially and extending the case to summary judgment or possibly a trial. As a result, few if any websites actually rely on Section 230(c)(2)’s protection; everyone relies on Section 230(c)(1). Indeed, we’ve recently seen filtering cases–where Section 230(c)(2) clearly should have applied–decided on 230(c)(1) grounds instead. See, e.g., Sikhs for Justice v. Facebook. It appears Sen. Portman may not understand how Section 230(c)(2) has effectively failed in the field.

I hope this blog post helps explain why so many in the Internet community have expressed grave concerns about SESTA’s effects despite Sen. Portman’s efforts to marginalize the concerns. The sponsors apparently think the bill wouldn’t change Section 230 for “good actors” when in fact it would eviscerate the immunity.

Related posts

* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity