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State officials take aim at Internet 'safe harbor' law

The federal law limits state attorneys general seeking to prosecute online violations of their criminal laws

By Elizabeth Heichler
June 18, 2013 04:02 PM ET

IDG News Service - Frustrated by their difficulty prosecuting cases involving online content that is illegal or damaging to individuals, a group of state attorneys general are taking action.

They are circulating a draft letter that they plan to send to the U.S. Congress, pressing for an amendment to the federal law that currently broadly protects Internet publishers and service providers from responsibility for third-party content on their sites.

The attorneys general are taking aim at Section 230 -- also known as the "Safe Harbor" provision -- of the 1996 Communications Decency Act, of which other elements have already been struck down as violating constitutional protections for freedom of speech.

The law protects publishers and site operators from being held liable for content written by third parties, except in cases involving federal criminal law, intellectual property law and electronic communications privacy law. So, while the U.S. Department of Justice has been able to prosecute cases where federal crimes are alleged, if state-level criminal laws are at issue, state attorneys general have not been able to hold defendants liable for online content.

The letter to Congress requests the insertion of just two words, "or state," where the statute exempts cases involving federal criminal law, explained Attorney General Marty Jackley of South Dakota, on Tuesday at the summer meeting of the National Association of Attorneys General (NAAG) in Boston. Jackley has led this effort along with Bob Ferguson of Washington and Chris Koster of Missouri. The letter is being circulated among NAAG members and could be sent to Congress as soon as July 8, he said.

Such an amendment would put state prosecutors on the same footing as U.S. attorneys, Jackley said, and correct what he called the unintended consequence of Section 230 in that "you've essentially given these guys immunity" when state criminal laws are broken.

There are not many ways to hold content providers liable under the statute, according to Eric Goldman, associate professor at Santa Clara University School of Law, who participated in a panel on Section 230 at the NAAG meeting. But in an interview later, he predicted "a big battle" as the state attorneys press the issue. "Section 230 has a lot of supporters," he said, pointing to the major Internet players who are teamed with free speech advocates and will defend the status quo. "The opposition is not well organized," he added, but acknowledged that the state attorneys general "have some political muscle."

The Internet business, now dominated by giant corporations such as Google and Facebook, arguably no longer needs the protection that the then-nascent online industry won some 18 years ago.

Reprinted with permission from Story copyright 2014 International Data Group. All rights reserved.
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