They're asking Congress to add two words to the CDA:
"Nothing in this section shall be construed to impair 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, or any other Federal or State criminal statute."
(Addition emphasized.)
This is in response to a W.D. Wash. decision that determined that the CDA preempted state criminal law. They're asking for it to be modified to say that the CDA does not preempt state criminal law.
If it does not override state law then it's next to useless. As in any new federal law could override it so the long term protection is simply at the state level.
Look, I think federalism is stupid, and best understood as the Framers' attempt at a jobs-program for lawyers. That said, it's not unreasonable for State AG's to chaffe at a federal telecom law preempting their state criminal laws. Legislating criminal law is one of the core function of the individual states. Yes, that makes it complicated if you're an internet company and operate in 50 different states with 50 different criminal laws, but well tough nuts. At the very least, this letter is not some far-reaching attempt to gut the CDA's protections.
While not unreasonable, removing the burden of interstate commerce is exactly one of the reason congress exists.
The fact that every state wants to do something to internet companies is one of the whole reasons for CDA.
You are right this isn't a "far reaching" attempt, it's a very simple attempt, but it's still trying to gut most of CDA's protections.
I think the orthodox interpretation of the commerce power is that it is intended to allow Congress to enact uniform economic regulation and prevent states from enacting economic regulation that prejudices out of state businesses. It's not intended to make doing business in multiple states easier by steamrolling over state criminal laws that only have an incidental effect on businesses.
Don't get me wrong, i'm actually a big fan of limited commerce power ("cumulative effect on the national economy" my ass), but i still see it as a bit larger than you do.
I'm not saying that the commerce power doesn't give Congress the right to preempt state criminal law in this case. I think we're in agreement that it does. But I don't think it's the purpose of the commerce power to make running an inter-state business easier simply by preempting state law that doesn't regulate commerce, simply to make compliance easier. By that reasoning, Congress should preempt state tax law, financial laws, etc.
It's limited to state criminal statutes. Compliance with the criminal statutes of every state in which a company does business generally has only an incidental effect on business, because as a practical matter state criminal statutes that directly burden interstate commerce are striken down for violating the dormant commerce clause.
Let me give you a concrete example. Say California makes it a crime to possess cheese produced outside California. That's an impermissible burdening of interstate commerce--an economic regulation (import ban) disguised as a criminal law. However, if you're a cheese producer from Wisconsin doing business in California, you still have to abide by California's other criminal laws, even though its a burden on you to ensure compliance with both California and Wisconsin criminal statutes.
In other words, the purpose of the commerce power is to allow Congress to impose uniform economic regulation, to prevent states from putting up trade barriers, etc. The purpose is not to ease the "burden" of complying with the criminal statutes of 50 different states. The states are entitled to have their own criminal laws and enforce them against those who do business in their state, as long as those laws aren't just a cover for prejudicing out of state businesses.
Again, I think it's stupid. We should just abolish the states and turn them into administrative districts. But to the extent that we don't entertain that idea, we have to accept the fact that the pain of complying with 50 different ideas of what criminal law should be exists by design.
>In other words, the purpose of the commerce power is to allow Congress to impose uniform economic regulation, to prevent states from putting up trade barriers, etc. The purpose is not to ease the "burden" of complying with the criminal statutes of 50 different states.
I don't think you can draw such a clean line between imposing uniform economic regulation and easing the burden of complying with divergent or conflicting criminal laws, or between criminal law and economic regulations. Most "economic regulations" are enforced with criminal penalties and most crimes would be markets if the activity weren't prohibited.
I don't think the important distinction is between criminal and commercial law (given that the latter can be read to encompass nearly anything) but rather a question of what commercial activity is inherently interstate and therefore a suitable area for the federal government to preempt the states and put down uniform rules. And the internet practically defines such a thing because anything on the internet is available everywhere all at once.
You don't want local regulations to apply to the internet. A company doing business on the internet doesn't choose (or necessarily even know) which jurisdictions visitors to its website reside in. The default state of a website is to be available world-wide. The most analogous historical activities are the interstate highway system, the postal service and long distance telecommunications, which have always been prime candidates for federal preemption, and even there you generally have a much better idea of which jurisdictions you're doing business with.
The existing CDA is extremely well suited to the internet because it still allows local criminal regulations to be enforced against local defendants, it just doesn't allow states to leverage the existence of local intermediaries into jurisdiction over the the entire internet. All it really prevents is for states to enforce regulations by proxy against citizens outside of their jurisdiction.
And prohibiting enforcement by proxy is good policy in any event because it leaves the application of criminal law in the hands of the justice system rather than corporate intermediaries. If AT&T or YouTube has to worry about local criminal liability for what users do on the internet then they're just going to block everything anyone makes a claim about regardless of the validity because they don't have the expertise or the incentive to mount a thorough investigation. This is already the problem we have with the DMCA, but now you're handing that power to every state's attorney general and every would-be complainant that makes a noise about filing a criminal complaint if the intermediary doesn't take the material down, and even worse because the DMCA at least provides a safe harbor if the material is removed. The proposed change to the CDA would leave the intermediaries having to preemptively guess what material might possibly violate any local criminal ordinance. They would have to moderate everything -- and then what about real time communications? Does it really make sense to subject Skype to criminal penalties if teenagers use it to sext each other?
Meanwhile the users have no remedy against frivolous take downs or refusals to carry speech because there is no judgment, just a prophylactic removal by a risk averse corporation which the user has no real recourse against.
>Again, I think it's stupid. We should just abolish the states and turn them into administrative districts. But to the extent that we don't entertain that idea, we have to accept the fact that the pain of complying with 50 different ideas of what criminal law should be exists by design.
I really don't think it does. The states are supposed to exercise local jurisdiction over local activity. The whole thing with Brandeis and laboratories of democracy. You let Alabama and California and Nevada all try different things and see what works. But you can't do that with inherently interstate activities because instead of 50 experiments you just end up having the most restrictive rules of any state be controlling, which is half the point of putting interstate commerce under federal jurisdiction. (The other half is discouraging protectionism as you point out.)
I'm not thrilled with EFF's response. I don't necessarily think it's hysterical, but it certainly reads as a bit too extreme an interpretation, injecting unverifiable malice where legitimate interest in protecting people and prosecuting criminal activity likely resides.
Are there no other laws on the books state AGs can rely upon to facilitate investigation and prosecution of alleged criminal activity?
How exactly will holding one actor liable for the actions of a different actor increase the desired ends of further protecting and decreasing underage/illegal human trafficking?
How ought one defend the principle that service providers (and other third parties) are going to be required to interrogate everyone who posts an ad, violate their privacy, and work for free as surrogates for the criminal justice system to cover their ass? That burden seems awfully high.
If the goal is to stop underage sex trafficking, what is the argument for spending public time and money prosecuting alleged facilitators for the actions of those who are trafficking, instead of pursuing the criminals themselves, helped by the existing laws at investigators' disposal?
Are there not enough statutes criminalizing trafficking and other unwanted activity that can be enforced?
Do you find no problem at all with the letter stating that sites like backpage.com "have constructed their business models around income gained from participants in the sex trade"? From the standpoint of language, that sure appears to be playing rather loosely with words, suggesting that these business exist to facilitate sex trading, rather than recognizing they have constructed their business models around income gained from people placing classified ads, and that service is being [ab]used by sex traffickers, arguably against the providers' desires.
However, that is not the same as assessing whether this is a warranted change that ought to be made.
It is nothing other than hysterical. The whole gamut of possible consequences you mentioned are already possible, because the CDA already contains a clause saying it shall not be construed to prevent the enforcement of any federal criminal law. The federal government can already do all the things you claim they might do (but largely doesn't).
What the states are asking for is that clause be extended to state criminal law. Since criminal law is the primary province of the states, this is not an unreasonable request. Could states use this in a way that would invoke the parade of horribles you mention? Possibly, but remember states must still have personal jurisdiction over a defendant to extend their criminal laws (and simply making something available over the internet in a state does not count). If you think a state treats online hosts unfairly in its criminal laws, you can simply refuse to do business there.
Evidence in the original letter from the AGs is pretty thin. As the entirety of their proof of "countless instances of child sex trafficking that occurs [sic] every day", they offer... three (three!!!) instances this year of some dirtbag "pimp" posting something on Backpage.com. In every such instance, the posts interfered in no way with said dirtbag's arrest and prosecution. It's as if they know that all the law-and-order fans won't read the damn thing, but they'll still get on HN and talk out of their asses.
George Mason wept.
What else would anyone expect from a bunch of drug-war prosecutors?
I blame ignorance and not malice. Then again, I wouldn't want to blemish a prosecutor's high conviction rate by invoking basic human liberties like expressing an opinion. Just think what might happen to the children.
Yep, they're trying to get rid of the provision that says ISPs/forums/etc. can't be held responsible for content their users post. If successful, they intend to... hold ISPs/forums/etc. responsible for content their users post.
This would be bad. People who operate ISPs/forums/etc. should oppose this attempt to change the law.
In particular, the Attorneys General are trying to shut down backpage.com (craigslist competitor) because some people use it to post smutty ads. But if the change they suggest were to be made, it would be open season to enforce any state law via attacks on the online services that people use.
They're asking Congress to add two words to the CDA:
"Nothing in this section shall be construed to impair 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, or any other Federal or State criminal statute."
(Addition emphasized.)
This is in response to a W.D. Wash. decision that determined that the CDA preempted state criminal law. They're asking for it to be modified to say that the CDA does not preempt state criminal law.