Resolution to Oppose Imposing Intermediary Liability on the Internet under State Laws
WHEREAS, the State of [insert state name here] believes in the principles of free markets and limited government, and
WHEREAS, those principles have allowed the Internet to flourish, transforming all aspects of our economy, society and politics, and
WHEREAS, federalism in the digital era means that, while states have a vital role to play in protecting their citizens, they must take care not to impose burdensome regulations across the Internet, which violate the so-called “Dormant Commerce Clause,” a constitutional doctrine that bars states from regulating interstate commerce even where Congress has chosen not to do so, and
WHEREAS, the Internet would be radically different, less creative and less useful, if businesses were held criminally liable under state law for user generated content (“UGC”) appearing on their websites — so-called “intermediary” or “secondary” liability — because of the breadth of state criminal law and the practical impossibility of policing UGC on such a large scale, and
WHEREAS, immunity from intermediary liability for UGC under state criminal law, as provided by 47 U.S.C. § 230, also known as the ‘Safe Harbor’ provision of the Communications Decency Act of 1996 (“CDA”), has been essential to enabling the development of the Internet as a user-driven medium, and
WHEREAS, many of the sites and services enjoyed by consumers today simply would not exist if their creators had faced the risk of heavy fines and even incarceration for UGC under state law, and such liability could stifle the further development of beneficial sites and services or those scarcely yet conceived, and
WHEREAS, without existing immunity under the CDA, many sites would face legal pressure to significantly curtail the social features that have done so much to facilitate free speech, expression, diversity, democratic participation, and commerce online, and
WHEREAS, CDA immunity already has exceptions for the most egregious conduct perpetrated by their users, such as child pornography and copyright infringement, and
WHEREAS, nothing in the CDA prevents state attorneys general from holding individual users liable for their own unlawful acts online, and
WHEREAS, further expanding criminal liability for Internet businesses to include intermediary liability under the state criminal laws of all fifty states would discourage investment and innovation in Internet services that enhance the freedom, health, and well-being of all Americans, and
WHEREAS, Internet users should remain free to contribute their own voices to communication services online, and Internet businesses should remain free to share these voices without fear of intermediary liability under state laws, and
WHEREAS, imposing intermediary criminal liability under state laws for Internet businesses may chill Internet users’ exercise of freedom of expression online, and
WHEREAS, imposing intermediary criminal liability under state law for Internet services may force risk-averse businesses to comply with the strictest set of state criminal laws, thereby consolidating the power to regulate the Internet in the hands of the most interventionist states, and
WHEREAS, imposing intermediary liability under state criminal laws would remove a crucial advantage American Internet businesses have over European and Asian competitors: freedom from excessive, duplicative, and debilitating criminal prosecutions over the actions of their users,
THEREFORE, LET IT BE RESOLVED, that the State of [insert state name here] calls upon the Congress of the United States of America not to amend the CDA to impose intermediary criminal liability under state laws for Internet businesses, and to maintain today’s approach that allows the competitive marketplace to generate innovative and welfare-enhancing platforms for consumer services online, free from excessive governmental regulation and overreaching state criminal law enforcement, and
BE IT FURTHER RESOLVED that the State of [insert state name here] endorses the following principles, that:
(1) Internet businesses should remain free from liability under state criminal law for displaying or hosting user-generated content, including users’ communications with each other, public posts and comments, photos, videos, blogs, reviews of products or services, and contributions to question-answer databases.
(2) Internet businesses should not need to conform to the particular and idiosyncratic restrictions imposed by each and every state upon UGC, either by litigation or threats thereof; and
(3) Internet businesses should remain focused on conforming to existing criminal restrictions on the display of user generated content as found in federal criminal law, intellectual property law, and electronic communications privacy law.
Approved by the Communications and Technology Task Force on August 8, 2013. Approved by the ALEC Board of Directors September 30, 2013.