Good news out of New Jersey—a judge has issued a temporary restraining order (TRO) blocking a dangerous a provision of a recently-passed New Jersey statute (A3352) that would have left online service providers legally on the hook for user-generated content. The TRO issued Monday blocks enforcement of the new law until the court hears additional arguments in support of a permanent injunction in early August.
EFF represents the Internet Archive in this legal challenge to the law, which aims to make online service providers criminally liable for publishing or disseminating certain third party materials. In court documents filed in advance of a hearing before a federal district court judge last week, EFF argued that the statute conflicts directly with federal law and threatens the free flow of information on the Internet. Backpage.com separately filed suit against the law, and also urged the judge to issue the TRO Friday.
The New Jersey law is the latest in well-intentioned but shortsighted attempts to combat online ads for child prostitution with overbroad and vague laws that could seriously constrict the free flow of information online. This statue (section 12(b)(1) of the "Human Trafficking Prevention, Protection, and Treatment Act") could impose stiff penalties—up to 20 years in prison and steep fines—on ISPs, Internet cafes, and libraries that "indirectly" cause the publication, dissemination, or display of content that contains even an "implicit" offer of a commercial sex act if the content includes an image of a minor. One consequence of such vague language is that service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties. The Internet Archive, which currently maintains an archive of over 300 billion documents in support of its mission is to archive the World Wide Web and other digital materials, has particular reason to be concerned if online providers could be pressured in this way.
This case is yet another example of why Section 230 of the Communications Decency Act (CDA 230) is so important for Internet free speech. CDA 230 ensures that Internet intermediaries are protected from liability for what their users do—holding speakers liable for what they say and do instead of the soapbox. Without CDA 230, we’d have a cascade of Internet service providers hesitating to host the vibrant speech and debate that makes up the backbone of the Internet. But with CDA 230, we have a clear national Internet policy supporting free speech instead of a confusing patchwork of state laws.
If this debate sounds familiar to you, there’s a reason: this is the second time EFF is representing the Internet Archive in a case like this. Last year, we and Backpage.com stopped an almost identical law in Washington state. It’s critically important that our laws don’t block socially beneficial content when targeting bad actors.
