Policy Memo: Analysis of U.S. Online Content Censorship & Blocking Efforts

Originally written for The Fletcher School’s Cyber in the Civilian Sector: Threats & Upheavals course, September 2020.

Prompt: Choose any country and write a memo describing (1) what types of content that country’s government has tried to remove, censor or block online, (2) how that country has implemented its censorship or blocking efforts, and (3) how effective those efforts have been and what additional measures, if any, you anticipate that country’s government taking to strengthen its control over the Internet within its borders.

America is the land of the free and home of the brave, the saying goes. When it comes to free expression, there is no more latitude than under the United States’ exceptionalism, wherein the First Amendment does not overrule hate speech but draws the line at restricting categories including obscenity, fraud, child pornography, speech pertaining to illegal conduct and lawless action, intellectual property law infringements and commercial speech like advertising. Penned in the early 20th century and initially conceived to protect dissidents from state suppression of political speech, many including scholar Tim Wu have called into question its usage and relevance in the internet age. He concedes that it might make sense to adapt the amendment to grapple with contemporary conditions that are less fraught with a federal threat on public speech than today’s mostly user-generated posts on social media. Given the amendment can only apply to action by the state, and not private parties, the digital era’s new arbiters of speech are protected and their censorial power largely ignored, at least until very recently.

Fast forward a few centuries from the advent of the First Amendment to the birth of the Communications Decency Act. While the early internet community strongly objected to many of its provisions — namely those considered overreaching attempts at protecting children by regulating pornography and obscenity (later struck down in the Supreme Court’s Reno v. ACLU case) — Section 230 became one of the most valuable tools enabling online expression and innovation to flourish. For context, the 1996 law exempts tech platforms from liability for actionable speech by their users, stating 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.”

Under Section 230 and unlike TV broadcasting networks and print outlets, platforms acting as publishers cannot be found liable or sued for hosting defamatory information or posts they know to be false. Our “marketplace of ideas” once governed at the federal level has new overlords in the form of Big Tech behemoths, who use algorithmic targeting to seize eyeballs and promote often-frenzied online activity in today’s attention economy. With no constitutional mechanism in place to tackle the widespread dissemination of hateful content or fake news that lives — and thrives — on Facebook, Twitter and YouTube amongst others — government regulators, civil society leaders and the tech industry itself feel today’s information and communication landscape has gotten out of control. But rather than advancing practical measures that would help companies curb their existing strategy of “ad hoc platform law” by standardizing guidelines, requiring more accountability and transparency mechanisms, and consulting subject matter experts to implement internal changes — the last few years have seen legislation pass that will chip away at the foundational nature of Section 230, and put key tenets at the core of internet freedom under threat of dissolution.

A 2018 bill package signed into law by President Trump titled the Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) is one example. Pitched as an anti-sex trafficking measure, the joint bill pokes holes in Section 230’s “safe harbor” by making websites responsible if third parties post online ads or content deemed unlawful or pertaining to prostitution, including ones shared by consenting adult sex workers. In attempting to facilitate the policing of the sex trafficking of minors and those coerced into prostitution to break up online rings, the ruling has resulted in sweeping censorship as sites rushed to ban content that could be misconstrued as relating to prostitution. Online platforms faced a crucial decision: risk severe civil and criminal penalties for their users’ activities, or restrict their online activity and content-sharing — which in the case of SESTA/FOSTA could constitute breaches on human rights to freedom of speech, right to work, and right to life. Popular personal ads site Backpage amongst others were hit hard, and the net result hurt both adult consenting sex workers and law enforcement investigations. Conflating consensual and nonconsensual sex workers ultimately harmed all those involved, as many using web-hosting services have testified. Unable to rely on such sites to safely share client black lists and access vital health information, many were forced back to pimps or to street work. Another consequence was that the ruling complicated surfacing evidence of illegal activity for law enforcement purposes, with much CSAM finding a new home on the dark web. Red Umbrella Hosting founder Melissa Mariposa asserts that: “While sex workers are being targeted now, other groups could be silenced next.” EFF, alongside other civil society organizations and internet infrastructure companies like Cloudflare, has sued the U.S. Department of Justice to have SESTA/FOSTA declared unconstitutional.

Earlier this summer, another proposed law purporting to protect children from online sexual exploitation is set to jeopardize privacy and free expression rights. The EARN IT Act revises the framework governing the prevention of online sexual exploitation of children, and has raised alarms amongst privacy advocates as it would grant unprecedented power to the Justice Department, that could require companies to scan and share all user messages, thus severely weakening encryption practices. Human Rights Watch’s child rights and technology researcher Hye Jung Han has stated that: “The EARN IT Act falsely suggests that we must choose between protecting children and protecting other fundamental rights, including privacy and free expression. Congress should instead adopt a rights-respecting approach to keep children safe online and protect their rights to access online spaces to learn, play, and socialize.” The ACLU’s letter of opposition similarly denounces the act and doubles down on the dangerous precedent it would set: “While well-intentioned, this bill would undermine the privacy of every single American, stifle our ability to communicate freely online, and may jeopardize the very prosecutions it seeks to enable.”

By forcing certain marginalized groups offline under the guise of protecting children, lawmakers are chipping away at fundamental online freedoms, which could set the stage for more misguided and problematic rulings down the line. A 2015 Slate investigation illuminates the surge of evangelical Christians taking up sex trafficking as their “cause célèbre,” a trend that has faced criticism as evangelical NGOs drastically expand the movement’s influence and reach. Faith Alliance Against Slavery and Trafficking coordinator Mandy Porter sheds light on her involvement: “FAAST and all of our partners are very intentional in that we say that all prostitution is inherently harmful. Whether or not it’s consensual, whether or not they want to do it, if it’s high-end or streetwalking, it’s harmful, and it’s not good.” This statement and the mainstreaming of the cause amongst in this type of echo chamber begs the question of whether a social and economic question should be a religious one too. We don’t need to look far to see its legacy in QAnon’s recent proselytizing around the so-called Save the Children movement, which started as a legitimate fundraiser but soon devolved into the movement — that has found a strong following amongst evangelicals — spreading false claims about global child trafficking conspiracies led by Democratic leaders and Hollywood elites. It is no coincidence that this theory saw an uptick in popularity around the time Facebook and Twitter began cracking down on related users and accounts in a bid to reign in misinformation.

Last but not least, it is not too far fetched to assume that SESTA/FOSTA and EARN IT have emboldened Trump to follow their efforts to put a nail in the coffin of Section 230 with his Executive Order on Preventing Online Censorship, released after Twitter fact checked one of his tweets. It would give the Commerce Department and the FCC the power to reinterpret Section 230 and create a tool for users to report online bias. Though initially panned as fruitless and technically illegal, a more detailed iteration has proved of more concern as it promises to rule over every website like it would a Facebook or a Twitter, including small blogs and even cloud storage services. With last week’s legislative proposal sent to Congress to overhaul the liability shield and crack down on social media platforms ahead of the election, much is still up in the air. Parties involved can’t do much else but anxiously watch this space.