New Jersey Law Creating ISP Liability Draws Preliminary Injunction
A federal judge granted a preliminary injunction against a recently passed New Jersey law, which would hold online platforms and ISPs liable for content their users post, according to a release (http://bit.ly/16bebaC) from the Electronic Frontier Foundation (EFF), which argued against the law in court on behalf of the Internet Archive. District Judge Dennis Cavanaugh in Newark found that a law aimed at curbing child sex trafficking -- including via the Internet -- creates liability for online platforms and ISPs, contradicting protections established by Section 230 of the Communications Decency Act (CDA), EFF Senior Staff Attorney Matt Zimmerman told us. The court hasn’t yet issued a written report.
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Cavanaugh said that plaintiffs were “correct on every single ground that we raised,” including conflicts with the CDA and the First and 14th amendments, Zimmerman said. “The shotgun approach to this legislation” didn’t consider the “collateral damage to speech online” that it would cause, he said. Websites are able to host user content because of the protections in the CDA, he said. It is “very, very likely” that the temporary injunction will become a permanent injunction at the end of the proceeding, he said. Cavanaugh’s staff told us the ruling would likely be issued by the end of the week.
The court found that the statute’s language was too broad and vague, Zimmerman said. The law (http://bit.ly/17JHsEP) criminalizes the publishing, disseminating or displaying or causing “directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor.” Under the law, an advertisement includes “either an explicit or implicit offer for a commercial sex act to occur in this State.” Many online platforms could be indirectly causing an implicit offer to be published without realizing it, Zimmerman said. “What specific activities does that cover? Who does that cover?"
"We will be appealing” the decision, the law’s sponsor, New Jersey Assemblywoman Valerie Huttle (D), told us. “We really aren’t going to give up” on efforts to make sure that “anyone who aids and abets in sex trafficking will be held accountable,” she said. Huttle said that lawmakers will consider next steps -- and “may look at revising the language” of the law -- once the court issues its written opinion. It’s “good news” that the injunction is only temporary and the court had issues with only the section holding platforms liable, she said. “I don’t want people to think that the law is on hold.”
A rewrite is unlikely to fix the law’s problems, Zimmerman said. “You can’t rewrite it and still have ... your main objective” to be targeting online platforms and ISPs that host user content, some of which may be illegal, he said. “Even if you fixed the constitutional problems ... federal law prohibits what” the bill is trying to accomplish.
Bills like New Jersey’s will continue to be written and passed, despite the fact that Friday marks the third time courts have found these bills problematic, Zimmerman said. He pointed to similar cases in Washington and Tennessee. “All of them have failed for all the same reasons,” he said. Still, political motivations will ensure that these bills continue to crop up, he said. State legislators are “afraid of being painted as someone who doesn’t oppose sex trafficking,” even if they know the law will ultimately be overturned in court, he said.
The ruling comes as state attorneys general are asking Congress to change the CDA. Zimmerman told us he hopes Congress doesn’t seriously consider a change that would so dramatically affect online speech, but “it’s a pretty serious thing to have” that many state attorneys general lobbying Congress. “Do you really want the Googles, the ISPs, to essentially do the job of law enforcement?” he asked. “That’s the opposite of why the Internet exists.”