CDA 230: The Law That Shields Facebook’s Illegal Activity
Over the last couple of years, Facebook and other Big Tech companies have come under fire for a number of reasons including data privacy, misinformation and hate speech. But did you know that they are also the biggest markets for illegal ivory, drugs and human body parts? Did you know that social media companies have reported over 45 million online photos and videos of children being sexually abused? Or that terrorist groups openly raise funds by selling looted antiquities? Were you aware that your children can easily access and purchase endangered animals, guns, fake passports, and methamphetamines? On top of all of this, tech firms have no legal responsibility to work with law enforcement to combat this illegal activity or even employ effective internal controls to contain it.
We are not exaggerating. Every day, researchers at the Alliance to Counter Crime Online (ACCO) log onto Facebook and other social media platforms to investigate and report criminal and terrorist activities. What we have found is so shocking that we are working together to change how the Internet operates.
What is CDA 230?
Facebook and other tech companies hide behind the Communications Decency Act Section 230 (CDA 230) in order to avoid regulating their own platforms. This law states that “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.” What this means is that Internet platforms are peer-to-peer, so they are not liable for any illegal or illicit activity uploaded by a user.
However, CDA 230 was enacted in 1996, several years before even MySpace was founded. Since then, social media has exploded in ways we never imagined, becoming a powerful global empire that has revolutionized how we communicate, buy and sell, play games and find jobs. It has also resulted in an explosion of organized crime as algorithms work to bring both criminals and victims together.
Why Is CDA 230 Problematic?
Facebook and other social media platforms have no independent auditing organization and deny responsibility for illegal content and activity under CDA 230. They claim that they are simply providers of any interactive computer service, yet in reality, their services have also expanded into publishers that actively profit off of criminal activity and they should be held liable for that.
It is important to realize that Facebook does not just passively allow this illegal activity to happen. For example, 89% of the firm’s revenue comes from advertising. So when tens of thousands of people log on to buy illegal ivory, Facebook is able to advertise other products in between the illegal posts, profiting off of illegal content and the criminals interacting with it.
Facebook also auto-generates terrorist content. In a 5 month long study, researchers observed Facebook’s own tools automatically creating fresh content for terrorist groups, such as the Islamic State and al-Qaeda, by producing “celebration” and “memories” videos when pages racked up enough views or likes. They did this by copying images, branding, and flags used by the groups. The auto-generation also created business pages for terrorist groups, in some cases creating hundreds of business pages for groups like ISIS.
In addition, Facebook’s moderators and AI techniques are not particularly effective in detecting the vast amount of illegal content. They rely on the public to report disturbing content, yet their algorithms create silos so that illegal content is only shown to those that actually want to see it. When illegal content is reported, Facebook simply deletes it, rather than handing it over to law enforcement to be used in investigations as evidence.
Keep CDA 230 Out Of Free Trade Agreements
In December 2019, the United States House of Representatives passed USMCA — better known as the “new NAFTA” — even though it contained language from CDA 230 that bipartisan lawmakers in Congress are trying to change.
Big Tech lobbied the White House to include this language in the New NAFTA, a trade pact with Japan, and now media reports say, similar language is being proposed for the US-UK trade agreement!
Prominent U.S. lawmakers on both sides of the aisle, including House Speaker Nancy Pelosi and Senator Ted Cruz pushed to remove CDA 230 language from USMCA, and have vowed to block it from future trade agreements.
The risk? Inserting CDA 230 into free trade agreements will limit the capacity of Congress to reform the law, which is exactly what the tech industry wants. Tech-funded analysts themselves have revealed that “baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.”
This sneaky effort by Big Tech lobbyists is coming at a time when the Department of Justice outlined a legislative proposal to reform CDA 230 and President Trump himself called for the law’s repeal.
As US House Representative Jan Schakowsky observed, tech companies “want to expand what they see as immunity all over the world right now. This is the plan of big tech, just like big pharmaceutical companies wanted to protect themselves in trade agreements.”
British lawmakers don’t want 230 in the trade deal either.
“I think it’s wrong for the companies to be given safe harbor immunity from acting against harmful content on their platforms,” declared Damian Collins, Member of Parliament for Folkestone and Hythe.
Hopefully lawmakers and the White House will swing into action to remove CDA 230 language from the US-UK trade deal before it’s too late. But we have to ask the Office of the U.S. Trade Representative: do you folks work for Big Tech or the American people?
How CDA 230 Should Change
In April 2018, Congress passed into law a loophole in CDA 230 called Stop Enabling Sex Traffickers Act and Fight Online Sex Trafficking Act (SESTA-FOSTA), a bill aimed at protecting American children by making technology firms accountable for controlling illegal content related to child trafficking on their platforms and regulates them to work collaboratively with law enforcement. While it was a good first step, American people — including underage children — are still being widely and blatantly sold and sexually exploited across US-owned social media platforms.
We envision a complete overhaul of CDA 230 to address the astonishing amount of serious organized crime, terrorist activity, and violence occurring widely on social media platforms, including drug trafficking, terrorist financing, and illegal wildlife trading. This illegal content should be archived, rather than deleted, and handed over to law enforcement to be used in investigations and criminal court cases. It’s no longer just content, it is evidence of crimes. In addition, tech firms should work with expert researchers in these criminal areas to enhance their technology’s ability to detect criminal content and activity on these platforms.
Piecemeal approaches will not work. We need to look at the entire supply chain — including the massive networks on social media — in order to fight transnational trafficking and organized crime that is pervasive on a global scale. Facebook and other Big Tech companies are the middlemen, the means through which organized criminals contact their buyers, supporters or victims. In any other industry or realm of society, the middlemen would be prosecuted. CDA 230 has given Big Tech a pass. But Facebook and others have not used the law as intended — invoking only the shield of protection while failing to use the sword that grants them power to remove illegal content.
Congress entrusted these companies with the freedom to moderate themselves, providing them immunity for the crimes on their platform in exchange. That trust has been broken. Tech firms, among some of the wealthiest and best-resourced companies in the world, have proven to the public and to Congress that the pervasiveness of crime on their platforms is not a symptom of their inability to solve the problem, but an effect of their unwillingness.
The only solution is to reform CDA 230.
