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Speech Crimes: How talking on the Internet can get you into trouble

September 9, 2010 by
Filed under: Business, Copyright Articles, law 

The latest headline for Internet goers this week is the removal of the “Adult Services” section of the popular user-generated online advertising board,  Critics of the section, including numerous State Attorneys General and public advocacy groups, claim it was a haven for illegal prostitution as well as human trafficking.  The push back has come from free speech advocates who say that there are already laws banning these practices, and censoring craigslist will simply make these violators harder to track.

The problems with free speech on the internet are as old as the internet itself.  In America, our First Amendment is something we hold near and dear to our hearts.  Free Speech, even in the US, is not without its boundaries.  Defamation, soliciting others to commit a crime, and fraud are all common examples of speech that is not “free”.  In fact, penalties can be quite severe: asking someone to commit murder can potentially result in a death sentence.

These speech crimes are what Craigslist was accused of abetting: the solicitation or offering of prostitution and human trafficking.  So why isn’t Craigslist being prosecuted for these crimes?  There are two main reasons: 1) Craigslist makes a significant effort to find and remove illegal postings, and 2) They are protected from liability under the Digital Millennium Copyright Act and the Communication Decency Act.

The DMCA ensures that sites and search engines that host other people’s content are not liable under copyright law for that content unless the hosts are aware of the content and its infringing nature.  The CDA contains this provision: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  So even if a site like Craigslist (or facebook, twitter, NY Times, etc.) hosts illegal content, they will not be considered the speaker of the content.  For example, if in the NY Times comment section a user posts the comment “Glenn Beck kidnapped my dog” the NY Times would not be held liable for defamation should Glenn Beck assert his rights.

While the DMCA and CDA have been effective in staving off lawsuits, criminal violations are a different matter.  Craigslist made the decision this week to “self censor” by voluntarily taking down the “adult services” section.  However, it’s fairly clear that coercion played an important role.  The letters from State Attorneys General were not only significant because the senders hold important governmental positions, but also because they will play a significant role in deciding if the State should criminally prosecute Craigslist for its role in illegal activities.

As more and more speech finds its way onto the internet the law will need to adapt.  Under the DMCA it is easy for authors to have their works taken down, and if a poster feels it has been taken down improperly it has easy recourse to have the work put back up.  All this is done while protecting the host from liability.  No streamlined approaches exist for other types of illegal speech.

Perhaps the most obvious case where this causes a problem is the (mostly anonymous) defamation which runs rampant on the internet.  Many sites explicitly state that while they will remove copyright violations and comply with the DMCA, they will not take any action based on claims of defamation without a court order.  The guidelines for a streamlined process are far from obvious, however.

The current state of the law does not differentiate between defamation on a printed newspaper and defamation on the internet; a plaintiff must obtain an injunction from a court after showing the court that they have been defamed.  This process can be lengthy and expensive, while posting defamatory content to the world is extremely quick and easy.  However, making it too easy for potential plaintiffs will allow people to abuse a streamlined process to hush accurate and honest statements.

Our society has a strong foundation in the rule of law.  As more social discourse and interaction occurs through electronic means the law needs to keep up.  The internet has enhanced our ability to communicate, including our ability to commit crimes through communication.  How much protection should be afforded to potential plaintiffs, defendants and victims is something for the politicians to hash out.  From a legal prospective it is quite clear that our antiquated laws are being strained to the breaking point as we try to apply them to ever-advancing technologies.

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