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Monday, May 29, 2023

Warnings From the Queer History of Modern Internet Regulation

In 1996, when the Communications Decency Act—the first major law intended to regulate the internet—went on trial before a federal court months after it was passed, lawyers called on an AIDS activist named Kiyoshi Kuromiya to testify. Kuromiya, a civil rights leader who was also a survivor of Japanese internment, had created an online resource called the Critical Path AIDS Project that provided safe sex tips and a 24-hour hotline to thousands of queer HIV+ people.

That work, Kuromiya said, would be criminalized by the Communications Decency Act, a piece of legislation that made it illegal to publish online any “indecent” or “patently offensive” material that could be accessed by minors—a nearly impossible restriction to uphold when it came to the internet. Supporters often framed the CDA as a narrow anti-porn bill that would only apply to minors, but the requirements it imposed on computer networks and internet service providers were so thinly defined that the law seemed certain to block much more than porn. Though signed into law in 1996, a lower court had placed a stay on its implementation. As the media historian Cait McKinney documented, Kuromiya told the district court that the law would make discussing safe sex online—an essential public health tool—subject to prosecution.

The court agreed with him. Its final decision striking down large swaths of the CDA frequently referenced Kuromiya, and The New York Times wrote that Kuromiya’s story “proved decisive” in the case. A year later, the Supreme Court upheld the ruling. But one piece of the CDA survived the decision: a short section best known as Section 230. That section, which states that interactive computer services, such as websites, are not legally liable for most content that third-party users post, took a much different approach to regulating the internet than the broader bill. The CDA held interactive computer services liable for an entire category of content, while Section 230 gave them breathing room on most everything else (save for federal criminal laws, intellectual property laws, and electronic privacy laws).

Today, as Section 230 faces reform and repeal efforts on both sides of the political aisle, with some calling for a return to CDA-style regulation that puts platforms on the hook for large amounts of content, it’s worth revisiting how the early internet regulation impacted queer internet users in the ‘90s. This sordid history shows the pitfalls of overly aggressive internet legislation—and holds warnings for contemporary reforms. Whether it is the “indecent” provision of the CDA or the sex work crackdown in the later Fosta-Sesta law, the brunt of laws that make internet service providers liable for certain categories of posts has inevitably fallen on marginalized users.

Queer people were essential to the fabric of the early internet. At the same time as the CDA was passed, the Associated Press reported that one-third of all chatrooms on AOL involved gay topics, and many onlookers began to jokingly refer to it as “gay-OL.” An executive at Microsoft noted that “the gay community has always been one of the most active groups on line.” Earlier in the decade, Bloomberg claimed that the “Adult” and “Alternative Lifestyles” channels (the latter being a euphemism mostly for queer people), were the busiest on the service provider CompuServe. Yet the same factors that drew queer people online—the ability to connect anonymously to anyone in the world and frankly discuss the realities of sexuality or gender—alarmed conservatives. Democratic Senator J. James Exon, the lead sponsor of the CDA, declared that children were being exposed to “on-line ‘red light’ districts.”

Chris Kryzan, who worked in tech marketing at the time, remembers this well. In 1993,

he launched an online organization called OutProud, a “Google for queers.” It featured a collection of resources for queer teens: national chat rooms, lists of queer-friendly hotlines, news clippings, and a database where kids could type in their zip codes and get connected to resources in their area. At its peak in the mid-90s, somewhere in the range of 7,000 to 8,000 kids had signed up. Yet the computer networks that hosted him, like CompuServe and to a lesser extent AOL, quickly cast his group as sexually explicit, simply because it centered gay and trans people.


So in 1995, when Congress first began considering a draft of the Communications Decency Act, it put Kryzan’s work in jeopardy of being labeled criminal. Kryzan—along with internet-focused groups like the Queer Resources Directory—decided to fight back. Gay newspapers ran editorials opposing the law. When queer activists discovered that the Christian Coalition, a prominent supporter of the CDA, set up a phone line that would forward messages of support for the Act on to senators, queer users instead flooded it with anti-CDA calls.

As the CDA debate raged, a pair of lawmakers—Chris Cox and Ron Wyden—introduced an unrelated bill in the House called the Internet Freedom and Family Empowerment Act. The legislation responded to a controversial court case, where a bulletin board service was held liable for third-party posts because it had conducted content moderation; the judge considered the service as much a publisher of the defamatory material as the original poster. The decision seemed to suggest that service providers that took a hands-off approach would be free from liability, whereas those that moderated even some content would have to be accountable for all content. Essentially, the Cox/Wyden bill tried to encourage service providers to perform content moderation, while also granting them legal immunity by not treating them as publishers.

Eventually, in early 1996, the Communications Decency Act was signed into law. But as a compromise to the tech world, a version of the Cox/Wyden bill—Section 230—was added into it.

When the ACLU, Kuromiya, the Queer Resources Directory, and a coalition of others sued, they were able to strike down much of the CDA, including the "indecent" and "patently offensive" provisions, as unconstitutional—but Section 230 remained. In his testimony, Kuromiya showed not only that overly broad internet regulation like the CDA would endanger online gathering spaces for marginalized people, but also that a community website like his didn’t have the resources to verify user ages or moderate all content that outside users post. The latter bolstered the case for Section 230. Whereas the CDA jeopardized marginalized communities’ online presences, Section 230, even if it did not necessarily intend to protect them, at least gave them some breathing room from the knee-jerk impulses of internet service providers seeking to avoid liability.

At the time, few anticipated that Section 230 protections would soon apply to a new crop of internet behemoths like Facebook and Google, rather than small providers like Kuromiya. Yet the internet governance that lingers today came out of these clashes around sexuality and who gets to exist online.

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.


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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