Congress should have borrowed from DMCA §512(c) when drafting FOSTA-SESTA

Joe Rabinovitsj is a J.D. candidate, 2021 at NYU School of Law.

§512(c) of the Digital Millennium Copyright Act (DMCA) and §230 of the Communications Decency Act (CDA) each provide online platforms with safe harbors for liability – copyright infringement in the former’s case, and a variety of speech-related liability including libel, obscenity, and hate speech for the latter – for third party activity, originally with the intention of stimulating investment in online businesses and platforms. FOSTA-SESTA, passed in 2018, carves out civil and criminal liability under federal sex trafficking statutes (18 U.S.C. §1591 and 18 U.S.C. §2421A) from §230’s safe harbor, with the goal of combatting the recent surge of sex trafficking and child pornography occurring online.

Despite passing the Senate with a 97-2 vote, FOSTA-SESTA is subject to two major criticisms. First, that FOSTA-SESTA’s encroachment on §230’s otherwise expansive, unencumbered safe harbor foreshadows further carve-outs, and creates prohibitively high costs for online platforms, ultimately deterring investment. Second, that by incentivizing platforms to shutter their classifieds pages (Craigslist and Reddit have already done so in the wake of FOSTA-SESTA for fear of sex trafficking liability), FOSTA-SESTA jeopardizes sex workers’ safety by depriving them of these vital tools for vetting clients, and ultimately pushes sex trafficking and child pornography to the web’s deeper recesses, making enforcement more difficult.

Had Congress modeled FOSTA-SESTA’s amendment of §230 on §512(c)’s safe harbor for copyright infringement, it could have mollified the first criticism, pursued the goal of curbing sex trafficking online, and deterred platforms from taking down fora that facilitated sex workers’ safety.

A key difference between §230 and §512(c) is the latter’s knowledge requirement. §512(c)’s safe harbor only applies if the platform lacks “actual knowledge” of third party infringement, is unaware of smoking gun evidence of third party infringement (facts from which a reasonable person would infer specific infringement, as in Youtube v. Viacom), or upon obtaining such knowledge or awareness “acts expeditiously” to remove the infringing content. §230 lacks such a knowledge condition for the safe harbor’s applicability – by providing that “[n]o 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,” in many cases §230 absolves platforms of liability even if they knew about the unlawful content at issue.

§512(c)’s knowledge requirement strikes a careful balance between deterring proliferation of copyright infringement online, and reducing platforms’ risk of liability for copyright infringement to incentivize investment. On the one hand, the safe harbor acknowledges that to incentivize the growth necessary for platforms to disseminate information and services widely, and facilitate connections between users, it won’t be financially feasible for them to remove all third party content that infringes copyright. But on the other hand, imposing a duty on platforms to remove infringing content when the platforms either are aware of specific infringement, or smoking-gun evidence, recognizes that many platforms are in the best position to police some (sometimes significant) portion of infringement. This balance between incentivizing investment in the growth of online platforms and the public interest in copyright protection may not always be perfect, but at least §512(c)’s knowledge requirement attempts to strike such a balance.

Congress should have used §512(c)’s knowledge requirement as a model when enacting FOSTA-SESTA to amend §230. FOSTA-SESTA moved from a world of virtually no liability for users’ sex trafficking violations on platforms to a world in which platforms face criminal liability for virtually all third parties’ violations. Bracketing the question of whether this move will make a dent in the volume of child pornography and sex trafficking online, this threat of liability from user activities risks chilling investment in online platforms too much – Craigslist and Reddit have already shuttered parts of their sites. If FOSTA-SESTA is the model for future carve-outs to §230’s safe harbors (and many groups, including Salesforce’s co-CEO, have been calling for §230’s repeal, not to mention further carve-outs), further moves from total immunity to liability for all unlawful third party speech under other regimes could significantly chill innovation online.

§512(c)’s knowledge requirement offers a middle path between the pre-FOSTA-SESTA world of no liability for third party violations of sex trafficking statutes, and FOSTA-SESTA’s threat of liability for all such third party violations. Had Congress drafted FOSTA-SESTA’s amendment of §230 such that its safe harbor only became ineffective against the federal sex trafficking statutes with respect to third party content the platform “knew” about or of which the platform had smoking-gun evidence, then platforms would be incentivized to police violating content without either burying their heads in the sand, or wholesale shutting down forums as Craigslist and Reddit did.

Had Congress drafted FOSTA-SESTA with §512(c)’s knowledge requirement, platforms would be incentivized to remove content and ads most likely linked to sex trafficking, without shuttering fora through which sex workers vet clients. 

If Congress does consider enacting further carve-outs of §230’s safe harbors, it should consider looking to §512(c)’s knowledge requirement as a model.