As online crime and terror proliferate, CDA230 undermines the rule of law

Did you know that designated terror groups openly use Facebook and Twitter to fundraise for attacks, even linking to their social media accounts from their websites?

Are you aware that you — and your children — can log onto social media platforms, and purchase everything from guns, fake IDs, and drugs to endangered animals and even human remains? (Yes — human remains.) Facebook has admitted to removing 100 times more drug sales content (1.5M posts) — in just the first six months it began enforcing the issue — than the dark web site The Silk Road ever hosted.

If this information shocks you, then it may also surprise you to learn that tech firms have no legal responsibility to remove illicit content, thanks to Section 230 of the Communications Decency Act (CDA 230) of 1996. As currently written, CDA 230 grants expansive immunity to any provider of an “interactive computer service” for user-generated content. Courts have even found companies which knowingly hosted illegal content to be exempt from legal liability based on the broad CDA 230 language. That’s nearly a quarter-century of unabated crime taking place on the internet with no consequences for the tech industry.

Try and imagine another industry that enjoys total immunity, even when their product harms American consumers. You can’t — because no other industry has ever received such a rich subsidy from Congress.

It is vital to understand that the CDA was originally drafted to protect American citizens from danger on the world wide web. In a perversion of the law, it has become a critical shield that protects only rich tech corporations.

As a result of the CDA230 immunities, unregulated social media giants failed to establish internal controls to contain and remove toxic content, since it was cheaper and easier to scale by looking the other way. These corporate decisions have had devastating impact, threatening consumer safety and the very functioning of the rule of law.

That’s not an overstatement. Every day, members of the Alliance to Counter Crime Online log onto social media platforms to track, record and report crime and terror activity. The scale of what we have recorded — from drug sales to child sex trafficking — is horrifying.

And what’s even more alarming than the toxic content itself is the flaccid response from lawmakers and regulators, coupled with the immoral and often deceitful response from social media firms.

Social media has been the new frontier for illicit activity for more than a decade. Organized crime syndicates use social media platforms to connect with buyers, market illegal goods, and move money, using the same ease of connectivity enjoyed by ordinary users. Illegal activity sometimes occurs out in the open, or inside private and secret groups. Social media platforms are also used by terrorist groups as a megaphone for propaganda, a platform for recruiting new members, and a source of financing.

The designated terror group Hezbollah, for example, has run an “equip a jihadi” fundraiser on Twitter, openly aiming to raise money for terror attacks on Israel.

Meanwhile ACCO experts have tracked how Mexican cartels and violent gangs use Facebook messenger to extort community members, and put out hits on their victims.

Facebook, Twitter and other tech giants know all this is happening, and claim they are trying to do something about it. In Congressional testimony, some tech leaders have claimed they were initially “too idealistic” to prepare for the many dangers lurking online.

In fact, the more appropriate adjectives are “careless” and “greedy.” Firms that operated under a “move-fast-break-things” banner have indeed broken a staggering amount. It is time these firms and their leadership are held accountable.

At ACCO, we believe Internet firms should become liable, much like financial institutions, for removing crime and terror activity from their systems, and that they should be sharing data about illicit activity proactively with law enforcement, and not deleting the scene of the crime. Lawmakers also need to properly resource law enforcement agencies, which are currently woefully ill-equipped to address this threat.

We call on Congress to block the USTR from including CDA 230 in our trade agreements, including the USMCA and to reform CDA 230. No law should block the path of justice to investigate a crime scene, nor grant safe harbor to an organization facilitating nearly every aspect of the criminal sequence.

Tech giants claim CDA 230 is vital to protecting free speech. The reforms we propose would not impact free speech nor political dissidents, but would apply solely to internationally recognized illicit activity, such as drug and human trafficking and terrorism. Specifically, we suggest:

• Stripping immunities for hosting terror and serious crime content, putting the onus on tech firms to monitor their platforms and remove illicit content;
• Regulating that firms must report crime and terror activity, along with full data about the user(s) who uploaded it, to law enforcement;
• Appropriate resources to law enforcement to contend with this data. 

If it’s illegal in real life, it should be illegal to host it online. The time for self-regulation by this perfidious industry has long since passed.

Gretchen Peters is executive director of the Alliance to Counter Crime Online. Previously she worked as a foreign correspondent for The Associated Press and for ABC News, and was part of an Emmy-award winning team covering Afghanistan in the weeks after 9/11. She is author of “Seeds of Terror,” about the Afghanistan heroin trade.