Warnings From the Queer History of Modern Internet Regulation

Except for Section 230 and an obscenity provision, the CDA is no longer with us. But that doesn’t mean revivals haven’t been attempted in the decades since: Queer activists like Tom Rielly, former co-chair of the tech worker group Digital Queers, have been involved in shutting down later efforts to regulate sexuality on the internet. Rielly testified in court that a 1998 law called the Child Online Protection Act, a kind of CDA reprise, would mean the downfall of a gay-focused website he launched called PlanetOut. (COPA was later struck down.)

More recently, amid calls to rein in the immunity given to platforms, a version of the nightmare scenario for marginalized communities has come to pass. In 2018, Congress carved out an exemption to Section 230, known as Fosta-Sesta, that proponents said would hold platforms liable for third-party posts or ads that facilitated sex trafficking. But the package of laws made “knowingly assisting, supporting, or facilitating” sex trafficking or prostitution a crime, without ever defining either term. Platforms, nervous about the broad scope of words like “supporting” and “facilitating,” began ejecting consensual sex workers from their main forums for safely getting work. The crackdown targeted not only online ads for sex work, but also online communities where sex workers organized and exchanged tips and mutual support.

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The web infrastructure company Cloudflare, for instance, pulled Switter, a social media site for sex workers with 49,000 members, just days after Fosta-Sesta was signed into law. PayPal froze sex workers’ accounts so as not to facilitate payments. Elsewhere, queer sex workers accused Instagram of hiding their posts from their followers, a practice called shadowbanning, thanks in part to Fosta-Sesta. Legislation around sex online has—as queer activists once feared would happen to them—chased a marginalized community out of its digital home.

The latest wave of Section 230 reforms—like the EARN IT Act from last year—have been written so broadly that they could, for instance, curtail different kinds of anonymous speech, a medium that Slate noted “is especially important for queer youth.” Other proposals, like the SAFE TECH Act, are more thoughtful, but many analysts still worry they would end with platforms filtering out broad categories of posts to avoid lawsuits. The SAFE TECH Act, for instance, has a civil rights provision that removes Section 230 immunity when third-party posts lead to discrimination on the basis of race, sex, religion, and other protected categories. That is an honorable goal on the surface, but given that Facebook famously considers “men are trash” to be an example of hate speech since sex is a protected category, it is easy to see such an approach backfiring on actually marginalized groups. (Facebook now appears to be walking back its stance slightly.)

The criticism of the immunities that Section 230 has given platforms is understandable. At its worst, Section 230 has incentivized inaction. It has allowed an online gun vendor to facilitate the purchase of weapons without legal background checks and protected reputation websites like Ripoff Report from taking down false and vindictive accusations, and shielded platforms from liability for harassment campaigns. But returning to the broad regulation of the ’90s is dangerous, too. And as Congress weighs this new round of Section 230 reforms, if history is any indication, they should tread carefully.

Laws like Fosta-Sesta and the Communications Decency Act show the ways in which internet regulations that purport to block narrow categories of content will inevitably have much larger ripple effects. When those categories involve sex, queer people and sex workers—groups with many overlaps—have historically been the ones to be silenced first. But should Congress introduce new exceptions to Section 230 in the coming months, there is every reason to think other marginalized groups will be caught in the crosshairs, too.

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