I Am Jane Doe:
how one company’s behavior threatens most user-generated content on the
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
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.