I Am Jane Doe: how one company’s behavior threatens most user-generated content on the Internet
I have followed the passage of the bill “FOSTA-SESTA” recently, which would narrow the downstream liability protections offered by CDA230 or Section 230 of the 1996 “Communications Decency Act”, the censorship sections of which ironically were struck down in 1997 by the Supreme Court. I attended the oral arguments for that case, and became a plaintiff, under Electronic Frontier Foundation, of the law that tried to replace it, COPA (the Child Online Protection Act), which was struck down in Philadelphia in 2007. Oddly, I had not heard of the film reviewed here until a couple days ago, although I’ve reviewed a similar short “Complicit” and know of another film on this topic “American Love Story” (legacy link).
Section 230 is very much the central subject matter of Mary Mazzio’s gripping documentary “I Am Jane Doe”, narrated by Jessica Chastain, now on Netflix (from 50 Eggs Films) released in February 2017, just before the first version of FOSTA would be introduced in the House of Representatives. The film is as much a legal mystery as it is a memorial to victims, and the film does not focus on the young women (including the “Jane Doe” plaintiff in the Boston case) as much as it might have.
There was one moment that was a bit personal. One of the minor victims had been a violinist. I was a pianist at her age, and did not follow music as career as I might have.
The film does give a good history of how Section 230 came to be written. I recall the days on my own IBM PS-1 when I was connected to AOL and Prodigy through a phone line, at 2400 baud, and thought Prodigy was a bit clownish. User-generated public content was not allowed on AOL until 1996, except for comments on news stories, as was the case for Prodigy. There was a comment involving “The Wolf of Wall Street” where Prodigy was held responsible for hosting a libelous comment about insider trading. So soon the law was passed to protect intermediaries from downstream liability.
So, we come to the whole Backpage story, and the trafficking on young women that it allegedly facilitated. At one point, a lawyer says, “We chose to protect the Internet rather than to protect children.” If so, that’s a profound argument regarding shared risk and shared sacrifice involved in living in a community.
In the broad view of this film, the development of the permissive approach to user-generated content on the Web may seem like a gratuitous accident. After about 1997 or so, anyone could have his own TV station, so to speak, without a gatekeeper or the approval of others to call on him. As I found, I didn’t need to prove that others would pay for the speech; I simply used my own platforms to enter debate on my own terms, without having to support others when I didn’t agree with them or show any solidarity. That may help keep authoritarian politicians in check for a while, but it could invite them back in the door later, as perhaps I’m not held responsible for the “privilege” that keeps my own personal skin out of the game. (Honestly, there are some people who think, if I’m not personally a victim, then if I speak about something I invite abuse! — the creeping meta-speech or “implicit content” problem.) Without Section 230 and some related law (DMCA Safe Harbor for copyright), the spontaneous user generated content would not be possible. Section 230 explains my whole second career as an older adult, for better or worse.
But in a narrower, more segmented view, the film makes the good case with several of the plaintiffs that even as originally written, Section 230 should not have protected a company from liability if, in the course of moderating classified “personals” ads (I use a euphemism) it deliberately helped the sellers get away with it. The film only narrowly talks about how trafficking (aka slavery) often starts: a minor (usually but not always female) is found in a public place like a shopping mall, is groomed and taken away, in broad daylight, seen but unnoticed by police or security (or by inattentive parents), but probably photographed. But soon she is the product on one of these personals websites.
The film traces litigation in Missouri, Washington State (J.S. v. Village Voice Media Holdings), New York, and Boston (Doe v. Backpage), on whether Backpage really can lean on Section 230 when it behaves as it apparently did. The politicians (John McCain, Clara McCaskill, and Bob Portman) all really make the case the Section 230 should not have protected Backpage, even though now they want to strengthen the law. The scene where a Village Voice Media executive Liz McDougall is grilled by the New York City Council is quite challenging.
The film mentions the organizations which opposed FOSTA on apparently “ideological” free speech grounds, especially Electronic Frontier Foundation, as having been funded by contributions from big tech, like many lobbyists. I should disclose that EFF is a beneficiary of my own trust.
The aftermath of the passage of FOSTA so far has affected mainly classified sites – especially personals – as Craigslist stopped accepting them, as did some other sites, and as some sub-Reddits were closed. As a result, the LGBT community is crying foul, as its people have to give up something to protect other people’s children. But that is what a community is always about: we have a freedom to explore or express something, and that same freedom can be misused by others, often by others less fortunate in life than us, so we have to sacrifice.
The undermining of Section 230 for the sex trafficking problem (which is horrible) will invite other erosions: terrorist recruiting, information on how to build weapons or carry out assassinations (the Paladin Press “hit man” case in the 1990s) – and all of these are horrible, with their own victims. In the wake of Parkland, we hear that the gun industry has its own form of liability protection. Indeed, Section 230 could be seen as exporting the “gunman instead of gun” argument from the NRA to the world of self-published and distributed speech.
Section 230 has been “misused” in other ways, as by Airbnb in the case of discriminatory housing listings. Maybe one irony will be that dating sites by nature have to be discriminatory.