Will Backpage be the death of the Communications Decency Act?

Most hosts are intimately familiar with the Communications Decency Act (CDA).  Indeed, the CDA is one of the primary, if not THE primary, laws that have made US internet infrastructure providers world leaders.  At base, it provides a “safe harbor” for internet infrastructure providers who exercise little or no editorial control over the content on their servers.  The CDA has allowed internet infrastructure providers to provision service to new and novel businesses without engaging in a legal risk analysis each time a new customer signs up.  This has allowed these providers to invest heavily in their networks and create robust platforms for new technologies.

As with any form of communication, however, there are entities whose businesses exist at the fringes of what society is willing to tolerate.  One of these services is “Backpage.”  Backpage is quite similar to Craigslist.  However, unlike Craigslist, Backpage continues to offer adult services, including escorts, as a category.  Indeed, this category makes up a significant part of Backpage listings.  One of the reasons Craigslist ceased offering these categories was their use for prostitution and sex slavery.   Those interested in stopping human trafficking have argued that these activities have migrated to Backpage.

Unlike Craigslist, Backpage refuses to eliminate the entire category, and has used the CDA to shield itself from liability for the content of these posts.  This use has prompted calls for changes to the CDA to remove certain types of content from its protections.  The argument is that the only method to address this type of communication is to hold the conduits liable for failing to respond to claims that the activity is illegal.

The initial legislative effort to target Backpage came from Washington State.  Washington’s Senate Bill 6251, which was signed into law, attempted to regulate online trafficking of minors by imposing an age verification requirement on online escort ads.  The law died in court when the State of Washington ceased defending it against claims that it violated the CDA, along with several provisions of the U.S. Constitution.  However, the author of the Washington State bill has stated that she intends to reintroduce a substantially similar bill designed to overcome the issues presented by the CDA.  There have also been rumblings in Congress that the CDA should be reopened.

This push to amend the CDA has attracted a diverse group of advocates ranging from opponents of cyberbullying to those who believe their businesses were damaged by online reviews.  It is this attraction that should concern internet infrastructure providers.  The success of the internet is built on the premise that the entities actually present on a website, not the technologies underlying them, are responsible for their actions.

While attempts to impose liability for various types of communication may, in some cases, be well intentioned, they simply miss the mark.  Internet infrastructure providers are not in a position to determine whether the activities taking place on their servers are legal, or illegal.  That is the job of the judiciary and police.  Indeed, given the number of complaints these providers receive on a daily basis alleging that one form of speech or another is somehow objectionable, creating this type of liability would likely slow internet communication to a crawl.

About David Snead

David Snead is a lawyer whose practice is focused on internet infrastructure providers. In his eleven years in this practice, he has represented clients including multinationals, middle tier hosting companies, and two guys, a server, a T-1 and a huge MasterCard balance.

A long-time WHIR contributor, David Snead is the Web hosting business's best-known legal expert. Through his WHIR blog, he offers a credible legal perspective on both specific actions in the Web hosting business and general developments in legislation.