New Jersey Bill Requires Self-Censorship of Social Networking Sites

Published June 1, 2009

The New Jersey legislature is considering a bill that would require Facebook, MySpace, and other social networking sites to find and remove offensive material.

The bill, authored by Rep. Nelson T. Albano (D-Vineland), has gained the support of New Jersey Attorney General Anne Milgram, who has promoted “Internet safety” for several years.

If the measure becomes law, social networking sites would have to place “report abuse” buttons on pages and respond to and investigate harassment claims. Failure to do so would subject sites to prosecution as violations of the state’s consumer fraud law.

‘Deputizes’ Web Sites
Braden Cox, policy counsel for Washington, DC-based NetChoice, an organization promoting consumer choice and market forces for the Internet, said the proposed measure infringes on free speech rights and would impose an enormous burden on the companies that run the sites.

“What I worry about most is that the law in a sense deputizes Web sites to be the gatekeeper for law enforcement,” Cox said. “If a communication is truly harassing or threatening, a Web user should go directly to the police, not the Web site operator. This most likely violates Section 230 of the Communications Decency Act (CDA).

“In addition, this bill will burden the smaller Web sites the most, by creating legal liability if they fail to expeditiously investigate and respond to a user’s report of abuse,” Cox added. “Moreover, the proposed law invites false reports of abuse, making it harder to address legitimate and often time-sensitive complaints.”

Would ‘Chill’ Protected Speech
Eric Goldman, director of the High Tech Law Institute at Santa Clara University in California, said the bill is misguided in several ways.

“The definition of social networking sites is so broad that it appears to cover every user-generated content site,” Goldman said. “In theory this could unintentionally impose significant costs on Web sites that aren’t really the legislation’s target.

“Also, I am not aware of any empirical or social science research that validates the idea this bill’s proposed solutions are effective, necessary, or cost-justified,” Goldman said. “[This bill] will impose costs on Web site providers and chill constitutionally protected speech.”

Targeting Questioned
Sam Bayard, assistant director of the Citizen Media Law Project at Harvard University, said he understands the desire of politicians to protect children from sexual predators, but this is the wrong way to go about it.

“[This approach] places obligations on social networking sites that are at least potentially inconsistent with federal law,” Bayard said. “[It also] raises First Amendment concerns by singling out social networking sites rather than applying [the law] to all online platforms that face issues with sexual predation and cyberbullying.

“It is hard for legislatures to write laws that address cyberbullying without impinging on constitutionally protected speech,” Bayard added. “Specifically, a good deal of speech that might be ‘cyberbullying’ as popularly understood does not qualify as defamation or a threat of imminent unlawful violence.”

Limited Value Suggested
Nancy Willard, executive director of the Center for Safe and Responsible Internet Use in Eugene, Oregon, said the bill’s proponents “demonstrate absolutely no understanding whatsoever about actual concerns” over electronic harassment.

“Sexual harassment that takes place at school would not be covered by this statute, sexual harassment that takes place via cell phone texting would not be covered, but sexual harassment that takes place via social networking sites would be covered,” Willard said.

Tabassum Rahmani ([email protected]) writes from Dublin, California.