The Man Who Spent $100K To Remove A Lie From Google

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The Man Who Spent $100K To Remove A Lie From Google: The New Clash Between Free Speech and Privacy
by Aarti Shahani
April 3, 2018

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Jeff Ervine poses for a portrait in the office of his home on the Upper East Side of Manhattan. In 2010, Ervine searched his name on Google and discovered a website with defamatory content labeling him as a con artist.
Elias Williams for NPR

In Europe, if there's a webpage with information about you that you don't like — because it's either inaccurate or just too personal — you can make Google hide it from search results. Google has done exactly that with more than 1 million pages in Europe. It's part of a growing legal movement in Europe that grants people "a right to be forgotten" on the Internet.

In the U.S., however, even in the most dire cases, the law doesn't protect people that way.

Jeff Ervine had a great career. He was chief operating officer of a hedge fund that managed over $1 billion, and then he started his own fund.

But in 2010, things took a dark turn. After some professional contacts overseas told him to check out Google search results about him, he was shocked by what he discovered: The first result when he searched his name was a website called Con v. Con. He clicked on it and saw a picture of himself, dressed in a tuxedo, standing beside his wife, who was in an evening gown.

The site warned that Ervine was actually a con artist who tried to trick a "know nothing" kid into a "sweet heart deal."

"It was very dark," he recalls.

The author of the website, a 26-year-old named Hakan Yalincak, wanted to take down Ervine for having helped the law put the young man behind bars.

The two had first met years earlier, when Yalincak and his parents wanted to set up a fund to invest their money. They came to Ervine for help. They were accompanied by what seemed like just the right cast of characters: Their lawyers were from an elite Chicago firm; their bankers vouched for the millions in their accounts; New York University, where Yalincak was a student, was going to name a building on West 4th Street in Manhattan after the family.

But little things bothered Ervine from the beginning. Subtle social cues seemed off. Unlike other rich people, these folks didn't talk about fancy schools or vacation destinations. Nor was there any name-dropping — social norms he had gotten used to in his dealings with the filthy rich.

"That's part of their bravado and their egos," Ervine says. "But the Turks and Caicos never came up. Art Basel never came up."

Then one night, Ervine met the family for dinner at a Victorian house converted into a farm-to-table restaurant in the New York area. After dessert, Yalincak said his driver would be coming to get him. But out on the curb, Ervine spotted him jumping into a beat-up cab.

"The hair stood up on the back of my neck," Ervine says.

He called a friend — a military veteran with contacts at the FBI — and soon the bureau unearthed a suspicious legal trail and launched a criminal investigation. In that case, Ervine handed over the information he had collected on the family and spoke with law enforcement.

He thought the matter was over. Yalincak was convicted of fraud, sentenced to 42 months in prison and then deported.

But from Turkey, he wanted to make Ervine pay for his actions. The website Con v. Con was designed to destroy Ervine's reputation.


"You are helpless and you're hopeless. And what can you do? It's like slut-shaming or anything else that goes on on the Internet today," Ervine says about his experience trying to get Google to top highlighting a slanderous website about him.
Elias Williams for NPR

At first Ervine shrugged it off. But then prospective clients and partners kept bringing it up. "I'd spend the first 15 minutes explaining the story" in every meeting, he says. It had happened right after the financial crisis and the Bernie Madoff scandal — not a great time to try to explain yourself.

Ervine knew he couldn't talk any sense into his attacker. But he assumed he could get Google on his side. He had lawyers fax and mail a letter to Google's chief counsel, with a simple request: Please stop highlighting this site in search results. Google ignored the request. Ervine was shocked.

"You are helpless and you're hopeless. And what can you do? It's like slut-shaming or anything else that goes on on the Internet today," he says.

Google holds the position that in the U.S., it's not obligated to remove defamatory content or lies from search results. It'll consider it if there is a court finding. Even then, it's really up to Google's discretion. So Ervine's lawyers sued the website creator. It took more than a year — to establish jurisdiction, to serve the papers overseas and to win the case.

The final court hearing was extraordinary. Judge James Holderman, of the U.S. District Court for the Northern District of Illinois, apologized to Ervine on behalf of the American justice system. "You, in my opinion, have done everything right — you have been a model citizen, you have assisted your government in exposing and prosecuting fraud on other people — and then you are victimized," he said for the court record. "I wish I could do more."

Ervine's lawyers rushed to Google with the judgment. And then it took a few months for Google to respond that yes, the company would help; then another month to actually do it.

No wonder that winning didn't feel like victory for Ervine.

In fact, even after Google stopped listing the defamatory site, the search page added a disclaimer — in red letters — that Ervine's results had been altered. It looked like he had something to hide, not like Google had made the mistake of highlighting false information. This warning remained in effect for months, even though it doesn't appear any longer.

"There's no humanity or kindness in Google. It's not about anyone else. It's all about Google," Ervine says.

NPR submitted a summary of his case to Google for response. A spokesman said he isn't certain why even after Ervine won his judgment it took Google so long to take down its reference to the malicious website. And then the spokesman added: "We don't comment on individual cases."

Ervine's lawyer Charles Lee Mudd Jr., who has represented dozens of Americans defamed online, says, "It truly happens to be a wild world on the Internet."

But in Europe, it's a different world. In response to new privacy rules imposed by the EU, Google has buried more than 1 million pages on that continent because the subjects of those pages say that the content is unreliable or simply too personal. In the U.S., no such "right to be forgotten" exists.

Ervine says his reputation was damaged and it hurt his career. Today, he is building a tech company called Bridg-it, to protect people like him who have been attacked online. He doesn't want anyone else to pay like he did. All told, Ervine spent about $100,000 in legal fees. In Europe, he would have just filled out a form.

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The Paris Lawyer Who Gives Google Nightmares
by Aarti Shahani
April 4, 2018 5:01 AM ET

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Dan Shefet won what may be the most powerful single case against Google: the right to get search results about himself removed. Now people and governments the world over are seeking him out.
Jessica Vieux for NPR

Dan Shefet is an unlikely tech revolutionary. He's not a young math geek who builds driverless cars, nor does he promise to make a tech product for the masses. His crusade is different. The 63-year-old year old Shefet has staged an astonishingly effective campaign in Europe to thwart the torrent of fake news and damaging personal attacks that course through the Internet by taking on the tech giants.

The Paris-based Shefet packs a lot of energy into his compact frame of 5 feet 7 inches, and one can even find him sprinting across the streets as he gets from one meeting to the next in the city. He is on a mission to kill free speech — at least the way the United States understands it. He has one aim, and it is directed squarely at a select few in Silicon Valley.

"A handful of corporations have been raised to a level of legal untouchability hitherto only bestowed upon certain diplomatic missions and royalty," he says.

These might sound like the perishable musings of an armchair critic or an op-ed columnist. But Shefet has legal street cred.

He battled long and hard against Google in court in Paris. And surprisingly, in a defining moment in the battle over digital rights, Shefet came out the victor.

Now he is attracting attention in the United States, and his timing is impeccable. The growing backlash against tech giants globally and in this country — where fake news, election interference by Russia and recent revelations of the Cambridge Analytica breach — have led to demands for greater scrutiny of Facebook, Twitter and Google.

All this has made the Danish-born Shefet a free-speech-slaying jet-setter. He is the man to know if a country — whether a democracy, a dictatorship or a tribal kingdom — wants some control over what can live online within its borders.

His energy is matched only by his love of good food. Over a meal in a tony French restaurant — a delicate tuna tartare accompanied by a dry Chablis with apricot undertones — he talks about his journey. Almost everything he says is punctuated by self-deprecating jokes and an easy laugh, his blue eyes crinkling with mirth. But his playful demeanor doesn't conceal the gravity with which he describes the immense power of the Internet giants.

"How far can they control your life?" he says. "When does it go too far?"

For Shefet, there was a moment when it did go too far. And the fight was personal.

Shefet vs. Google: He wins


Shefet is part of a much larger movement in Europe pushing back against the power of the tech titans under the banner of the "right to be forgotten."
Jessica Vieux for NPR

In 2013, Shefet had a plain-vanilla legal practice. He wrote employment contracts and analyzed intellectual property claims. That all changed, he says, when a client's vengeful enemy took to the Internet and created websites that attacked Shefet — claiming he was a member of the Serbian mafia.

The claim was so ludicrous that Shefet shrugged it off. But the pages quickly rose to the top of his Google search results. Some colleagues began to question Shefet openly, and he realized he couldn't ignore it anymore. He felt his reputation and his career might unravel.

Shefet obtained an order from a French court directing Google to stop highlighting the defamatory sites in search results for his name.

He hired a courier to serve the injunction at Google's headquarters in Mountain View, Calif.

But nothing happened, he says. Google's lawyers ignored it.

"The pinnacle of arrogance is indifference," Shefet says. "They simply couldn't care less ... not even a bot response."

That would have been the end of the story if not for a dusty law, nearly two decades old, revived by the European Court of Justice soon after. Its directive asserts that people have a right to privacy, even on the Internet, and that search engines like Google must determine whether an individual's privacy right outweighs the public's right to know even correct information. And so, the "right to be forgotten" law for the Internet was born.

Buried near the midpoint of the 100-paragraph opinion was the legal ammunition that Shefet needed. The judges suggested there is an "inextricable link" between Google's Mountain View headquarters and any of its subsidiaries around the world. So Shefet made a novel legal argument: The child could be punished for the sins of its corporate parent. Meaning Google's Paris office, responsible for selling ads to French buyers, would have to pay for every day the California headquarters ignored Shefet's takedown request.

He sprinted to a French court and won. Google would face a fine of $1,200 a day, or obey. The company obeyed.

Shefet's victory signaled just how easy it might be to make the tech titan bend to one's will. And so the floodgates opened with private citizens, companies and governments around the world all seeking his counsel. He became an improbable hero.

The globe-trotting speech slayer

Shefet's penthouse office on Paris' Right Bank has bookshelves, lined with black leatherbound copies of French civil code. But they're obscured by trinkets from his new life that has taken him around the world. Shefet points to a wooden sculpture from Cuba — a hand clenched in a fist, but for a very large middle finger sticking up in the air. "It was a gift," he explains, as though he wouldn't have chosen it on his own. A bronze bust of Alexander the Great is set beside another gift, a statue of the Indian god Krishna, which he received when he traveled to Delhi — back when he was just beginning his global anti-Google crusade.

These days, Shefet is also reading a lot of paperbacks that lie strewn about his office. His current obsession is pre-World War II information warfare — reminiscent of the kind that is fought on the Internet these days.

"Propaganda is not new," he says. "Technology is just changing how it works."

Shefet's office is a quick walk from the Élysée Palace, France's White House. He fields calls from far-flung governments — Germany and France, Saudi Arabia and Singapore — seeking his counsel on how to censor extremism and hate speech online.

In Germany, he has advised Angela Merkel's administration on a hate speech law that she pushed through, which makes tech companies subject to fines of about $60 million if they break it. He is advising senators in France on a similar law being drafted there.

Shefet has clearly made his mark in Europe, where suspicion of Silicon Valley already runs deep and the idea of an absolute right to free expression is widely seen as damaging and absurd.

Since his victory against Google, Shefet is also hearing more from Americans. A state assemblyman wants advice on a bill that gives New Yorkers a right to privacy similar to what Europeans have. Consumer groups want expert testimony. And individuals reach out, too.

Not every case is as clear-cut as the false claims Shefet says were leveled against him. Some people end up in the news and want their Google searches changed so a single event doesn't dominate their digital life.

Several years ago, a man who was getting his Ph.D. was the victim of a brutal police assault. In 2017, he was on the job market and wanted Google to stop highlighting the news reports that included pictures of his bloodied face. He enlisted victims advocate groups to help, but Google declined. "I wish him the best in his efforts to heal and move on," Google counsel Erin Simon wrote in an email. "But Web Search merely reflects what exists on the Web."

Caroline Memnon sued her Manhattan law firm for discrimination, and the parties entered a confidential settlement. But when news of her case leaked to The New York Sun and law blogs, the Columbia Law grad feared her reputation was forever damaged.

"No firm would hire me, knowing about it," Memnon says. "I won the battle and lost the war."

Both she and the assault victim reached out to Shefet, who brainstormed arguments each could make to claim standing in Europe to sue Google. While it's far-flung, Shefet argues, they don't have a chance in the U.S.

It's different in the United States

Shefet is part of a much larger movement in Europe pushing back against the power of the tech titans under the banner of the "right to be forgotten."

The movement has achieved tangible results.


Google Honored Nearly Half Of ‘Right To Be Forgotten’ Requests
Data include European requests made between May 2014 and December 2017.
Source: Google
Credit: Hilary Fung/NPR


Number Of Google Search Results Scrubbed In Europe, By Media Outlet
The delistings shown were requested between January 2016 and December 2017.
Source: Google
Credit: Hilary Fung/NPR


Why Google Scrubs Sites From Search
Data include requests made between January 2016 and December 2017.
Source: Google
Credit: Hilary Fung/NPR

Since the 2014 landmark court ruling, Google says in a recent report, it has received requests to hide or delist about 2.4 million Web addresses in Europe. Some were fake news. Some were factually true. However, people cited in those pages made the case to Google that the stories harmed their privacy interests without serving the public interest. The search giant agreed to delist about 43 percent of those pages.

In the U.S., Google consents to such requests only in the rarest circumstances, typically requiring a court order.

Google's top privacy lawyer, Peter Fleischer, is based in Paris. The company sent him there to counter the movement Shefet helped build.

When NPR asked Fleischer if Americans should have the same right to Internet privacy that Europeans have, he says, "Clearly, they don't." What's more, he says, it's the wrong question. The right one is: "Can they? That's a legal question."

Fleischer doesn't want Americans to be seduced by the European option. He offers two arguments to make his point.

First, the U.S. — more so than any other country on earth — values free speech. So much so that it's a First Amendment right. What Europe is doing, he says, "would be inconsistent with the U.S. Constitution."

And second, Europe's new laws are creating an Internet that people can exploit to hide the truth, Fleischer says. As examples, he cites people with criminal records who want to bury accurate news reports; lawyers and dentists who want to hide the complaints of unhappy customers; business owners obsessed with projecting a certain image.

"I think a lot of people would think that's troubling — to think that the more wealthy and powerful in the world can use this tool to polish up their online reputations far more than the average Joe," Fleischer says.

He downplays Shefet and says he is familiar with his work, from reading about him in the press.

Meanwhile in Washington, D.C., Charles Tobin, a prominent media lawyer, says he is very familiar with Shefet and fears his message cuts against a transparency society. "I do not agree with hardly anything he says. Can you imagine O.J. going to court after his acquittal, or President Clinton after impeachment — trying to scrub the record?" However, he has invited Shefet to speak at an American Bar Association session in Paris about speech and privacy.

Google declined to say how many requests the company receives or honors from Americans seeking to remove a search result.

One New York man tried. But to no avail.

He asked not to be named for fear of further damaging his reputation, having lost his career after his name was cited in a news story about a Wall Street investment firm that was misleading investors. He has since asked for and received letters from both the FBI and the Securities and Exchange Commission confirming his innocence and he has shared them with Google. But despite these affirmations, which he showed NPR, Google would not remove the article from search results. It has been eight years and he still can't get a job. He and his wife want children, but his entire life is on hold.

He mailed a letter to the home of Google CEO Sundar Pichai pleading his case: "Please put yourself in my shoes, and ask how would you feel if your career and entire life's work and savings all were destroyed ... would you not morally and legitimately expect Google to do the right thing ... ?"

Pichai did not respond. One of the Google chief's lawyers, Lee-Anne Mulholland, did write to the New York man in an email: "[W]hile we are very sympathetic to your story, we are unable to remove [the] article."

Google declined to comment further on the case.

"Google is not unable," says Shefet, who bristles at that notion. "They are unwilling. Why do they pretend it's about free speech? There's no principle involved."

The aspiring peacemaker

But Shefet does not want the tech titans to see him as the enemy. Though he has made his mark in the opposition, he says he wouldn't mind being a peacemaker, a broker between Silicon Valley and people who feel they've been harmed by the sludge on the Internet.

"He's having so much more fun," says Tom Hoyem, Shefet's high school teacher, who explains that Shefet wasn't always as jovial all those years ago. In fact, he was a very serious child, perhaps because he came from a broken home, Hoyem posits: "Dan was too old when he was 16."

Dining at a small Paris pub, Shefet talks about how his family shapes his worldview. When Shefet was a young boy, his parents split up. It was at a time when almost no one divorced. "They hated each other — or, I should say, my mom hated my dad," he recalls. "I wasn't allowed to see him."

For many years they had no contact, which made Shefet sad because, he says, his father was a vast ocean of knowledge, a repository of obscure facts and insightful answers.

Fast-forward 15 years and not only did the animosity fade but, in a surprise twist, Shefet's parents remarried.

The lesson is not simply that there's a thin line between love and hate; but, as Shefet puts it, "Everyone is always right. No one fights for their side when they believe they're wrong. So, if you can see how your adversaries believe they're right, then you can come to an understanding."

He hopes it takes the titans and their disaffected users less time than it took his mom and dad.

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Google Has Received 650,000 'Right To Be Forgotten' Requests Since 2014
by James Doubek
February 28, 2018 5:44 AM ET

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Google says it has received more than 650,000 requests to remove certain websites from its search results since a European court ordered the company to allow Europeans the "right to be forgotten" in 2014.

In a company "transparency report" and research paper released this week, Google said most of those requests were to remove five or fewer URLs from its search results. In all, Google says it received requests to remove more than 2.43 million URLs since the end of May 2014, and it has removed about 43 percent of them.

In May 2014, the Court of Justice of the European Union ordered Google and other search engines that operate in Europe to allow individuals to ask the sites to delist certain search results relating to a person's name, if the information is "inadequate, irrelevant or excessive in relation to the purposes of the processing." People in European Union countries along with Iceland, Norway, Switzerland and Liechtenstein may make the request.

During the 3 1/2 years, until the end of 2017, Google says there were almost 400,000 requesting entities. In the past two years, celebrities requested more than 41,000 delistings and politicians and government officials requested almost 34,000. The company says just 1,000 requesters were "frequent requesters," often "law firms and reputation management services," which made up 15 percent of all requests.

Google says 89 percent of requests came from private individuals since it began taking more detailed information about them in the beginning of 2016. Social media sites, directories, news articles and government pages make up most of the links that people want removed. A little more than half of all requests came from just three countries: France, Germany and the U.K.

For example, one request came from a person in France "to delist several URLs from Google Search about his election as leader of a political movement and other political positions he held when he was a minor," the company said. Google says it complied with most of that request.

The underlying information on a third-party website is not deleted in this instance, but it becomes much more difficult to find if it no longer appears in Google's search results.

The search results people see in countries outside Europe are not affected. Google says it uses "geolocation signals to restrict access to the URL from the country of the requester" and delists the link from all of its European Union country search engines (like google.fr or google.es).

Google says it evaluates "each request on a case-by-case basis." The company says it weighs the public interest when determining when to remove a link:

"Determining whether content is in the public interest is complex and may mean considering many diverse factors, including—but not limited to—whether the content relates to the requester's professional life, a past crime, political office, position in public life, or whether the content is self-authored content, consists of government documents, or is journalistic in nature."

That means that it's up to a private company to determine what's in the public interest, which "places a huge, huge burden on them but also gives them a lot of power," as professor Meg Ambrose of Georgetown University told NPR in 2014.

A Spanish man brought the original case that spurred the 2014 ruling. On Tuesday, an English court heard the first "right to be forgotten" case in that country, from a businessman who "was convicted of conspiracy to account falsely in the late 1990s and wants the search engine to remove results that mention his case, including webpages published by a national newspaper," The Guardian reported.

Google is also battling with French privacy regulators, who insisted on having the company remove search results globally, not just in Europe. The case is now being considered by the EU's Court of Justice. According to Politico, a decision isn't likely before next year.

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Section 230: A Key Legal Shield For Facebook, Google Is About To Change
by Alina Selyukh
March 21, 2018 5:11 AM ET Updated at 5:17 p.m. ET
Heard on Morning Edition

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A 1996 law sits at the heart of a major question about the modern Internet: How much responsibility should fall to online platforms for how their users act and get treated?
Oivind Hovland/Getty Images/Ikon Images

It's 1995, and Chris Cox is on a plane reading a newspaper. One article about a recent court decision catches his eye. This moment, in a way, ends up changing his life — and, to this day, it continues to change ours.

The case that caught the congressman's attention involved some posts on a bulletin board — the early-Internet precursor to today's social media. The ruling led to a new law, co-authored by Cox and often called simply "Section 230."

This 1996 statute became known as "a core pillar of Internet freedom" and "the law that gave us modern Internet" — a critical component of free speech online. But the journey of Section 230 runs through some of the darkest corners of the Web. Most egregiously, the law has been used to defend Backpage.com, a website featuring ads for sex with children forced into prostitution.

Today, this law still sits at the heart of a major question about the modern Internet: How much responsibility do online platforms have for how their users behave or get treated?

In the first major change to Section 230 in years, Congress voted this week to make Internet companies take a little more responsibility than they have for content on their sites.

Library or newspaper?

The court decision that started it all had to do with some online posts about a company called Stratton Oakmont. On one finance-themed bulletin board, someone had accused the investment firm of fraud.

Years later, Stratton Oakmont's crimes would be turned into a Hollywood film, The Wolf of Wall Street. But in 1994, the firm called the accusations libel and wanted to sue. But because it was the Internet, the posts were anonymous. So instead, the firm sued Prodigy, the online service that hosted the bulletin board.

Prodigy argued it couldn't be responsible for a user's post — like a library, it could not [be] liable for what's inside its books. Or, in now-familiar terms: It's a platform, not a publisher.

The court disagreed, but for an unexpected reason: Prodigy moderated posts, cleaning up foul language. And because of that, the court treated Prodigy like a newspaper liable for its articles.

As Cox read about this ruling, he thought this was "exactly the wrong result": How was this amazing new thing — the Internet — going to blossom, if companies got punished for trying to keep things clean? "This struck me as a way to make the Internet a cesspool," he says.

At this moment, Cox was flying from his home in California to return to Congress. Back at work, Cox, a Republican, teamed up with his friend, Oregon Democrat Ron Wyden, to rectify the court precedent.

Together, they produced Section 230 — perhaps the only 20-year-old statute to be claimed by Internet companies and advocates as technologically prescient.


Sen. Ron Wyden, D-Ore., (left) and Rep. Christopher Cox, R-Calif., speak about the Communications Decency Act in 1997. They were behind Section 230, which says that with some exceptions, online platforms can't be sued for something posted by a user.
Douglas Graham/Congressional Quarterly/Getty Images

"The original purpose"

Section 230 lives inside the Communications Decency Act of 1996, and it gives websites broad legal immunity: With some exceptions, online platforms can't be sued for something posted by a user — and that remains true even if they act a little like publishers, by moderating posts or setting specific standards.

"Section 230 is as important as the First Amendment to protecting free speech online, certainly here in the U.S.," says Emma Llanso, a free expression advocate at the Center for Democracy and Technology.

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S. Code § 230

The argument goes that without Section 230, we would never have platforms like YouTube, Facebook, Twitter, Yelp or Reddit — sites that allow ordinary people to post opinions or write reviews.

It's "the one line of federal code that has created more economic value in this country than any other," says Michael Beckerman, who runs the Internet Association, which represents many of Silicon Valley's largest companies.

But Section 230 is also tied to some of the worst stuff on the Internet, protecting sites when they host revenge porn, extremely gruesome videos or violent death threats. The broad leeway given to Internet companies represents "power without responsibility," Georgetown University law professor Rebecca Tushnet wrote in an oft-cited paper.

Cox says, "The original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things on the Internet."

"A Teflon shield"

The original purpose hasn't always prevailed in court. And one specific example has prompted Congress to vote to amend Section 230 — the first cutback to websites' protections in years.

It's the case of Backpage.com, a site ostensibly for classifieds, but one well known for its adult-services ads. Among them — if you know what to look for — are sex ads featuring children forced into prostitution.

"All of those terms were indicative of an underage child — Lolita, fresh, new to town," says Mary Mazzio, a filmmaker whose documentary I Am Jane Doe tells the story of several young girls sold for sex on Backpage.

Over the years, victims and their families brought case after case against Backpage — and lost. The website kept convincing judges across the country that Section 230 shielded it from liability for the posts of its users. Major digital-rights groups, including the Center for Democracy and Technology, argued that holding Backpage liable could have chilling effects for social media and other websites.

This bewildered Mazzio: "How is it possibly legal that a website that makes millions and millions of dollars has no accountability for this crime?" she says. "Section 230 has turned into a Teflon shield, not to protect free speech but to protect business revenue."

The Supreme Court last year declined to hear victims' appeal in the case of Backpage and Section 230.


Kubiiki P. wipes tears as she testifies at a 2017 Senate hearing about her young daughter being sold for sex on Backpage.com. The site, ostensibly for classifieds, is well-known for its adult-services ads.
Cliff Owen/AP

"The judge-made law"

Eventually, mounting evidence showed that Backpage was actively involved in the sex ads. That means the site is a publisher liable for its content. Backpage and its founders are now facing a federal grand jury in Arizona.

To Sen. Ron Wyden, co-author of the law, the Department of Justice missed the mark for not going after Backpage earlier, since Section 230 does not preclude federal criminal investigations.

Beyond Backpage, similar concerns continue to play out with sites that solicit revenge porn, publicly acknowledge potential risks to users or ignore harassment complaints.

"I'm afraid ... the judge-made law has drifted away from the original purpose of the statute," says Cox, who is now president of Morgan Lewis Consulting. He says he was shocked to learn how many Section 230 rulings have cited other rulings instead of the actual statute, stretching the law.

Cox argues that websites that are "involved in soliciting" unlawful materials or "connected to unlawful activity" should not be immune under Section 230. Congress should revisit the law, he says, and "make the statute longer and make it crystal clear."


Backpage.com executives — CEO Carl Ferrer (from left), former owner James Larkin, Chief Operating Officer Andrew Padilla, former owner Michael Lacey — are sworn in to testify before a Senate Homeland Security and Governmental Affairs subcommittee on investigations in January 2017.
Cliff Owen/AP

Responsibility

Cox draws this distinction of websites like Backpage — involved or connected with their content — and sites that are "pure intermediaries." He wouldn't say whether that term applied to Facebook or Google.

Interestingly, the Internet giants themselves — as well as Wyden — talk about the law as being rooted in responsibility.

"The real key to Section 230," Wyden says, "was making sure that companies in return for that protection — that they wouldn't be sued indiscriminately — were being responsible in terms of policing their platforms."

Beckerman of the Internet Association describes Section 230 as "not a blanket amnesty" but a call for responsible policing of platforms. The Internet companies say that on sex trafficking, they actively help investigate cases — and that generally, without Section 230, websites would resort to more censorship or decide to know as little as possible about what happens on their platforms.

But Danielle Citron, a University of Maryland law professor who authored the book Hate Crimes in Cyberspace, argues that responsibility is exactly what is missing from the law.

"Yes, let's think about the consequences for speech," she says, pointing to the flip side of the freewheeling Internet. "There are countless individuals who are chased offline as a result of cyber mobs and harassment."


People rally in 2014 at the Washington state Supreme Court, which heard a case filed by three victims of sex trafficking against Backpage.com, saying the website helped promote the exploitation of children.
Rachel La Corte/AP

A rift among companies

Politically, the story of Section 230 has recently taken a surprising turn.

The Backpage saga has galvanized lawmakers to act on bills amending Section 230 with the goal of stemming online sex trafficking. The legislation allows more state and civil lawsuits against websites related to online sex trafficking, for "knowingly assisting, supporting or facilitating" crimes.

The Senate passed the bill Wednesday, sending it to President Trump for his signature. The White House has supported the legislation.

And for the first time, after years of staunch defiance, the Internet Association came out in support of legislation to change Section 230, shocking smaller Internet companies and digital-rights groups by breaking ranks.

The industry giants are narrowly threading the needle. After the bill passed the House, the Internet Association said the industry not only is "committed to ending trafficking online" but also "will defend against attempts to weaken these crucial protections" of Section 230.

"We all share the same goal," the association's Beckerman told NPR, "and that's to ensure that victims are able to have justice they need, but also enable our companies to stop this practice."

Engine, a group advocating on behalf of smaller Internet companies, argues that Silicon Valley behemoths like Google, Facebook and Twitter can handle more lawsuits and the legal uncertainty that would smother a startup.

Not the last challenge

Wyden points out that these are the very same platforms facing massive scrutiny for being manipulated by Russian operatives during the 2016 election, making it a politically touchy moment for the companies to fight over sex-trafficking legislation.

"The big companies have a lot of egg on their face over the election, and nobody wants to be seen as being soft on sex trafficking," he says.

Wyden and Cox have opposed the legislation to amend Section 230, along with groups including Engine and the Center for Democracy and Technology. Opponents of the bill say it could lead to crimes moving deeper into the dark web and to websites resorting to more censorship or ignorance of what happens on their platforms to avoid liability.

Sen. Rob Portman, R-Ohio, author of the Senate bill, says the tech community "overreacted" to amending Section 230 "to the point that they weren't willing to look at the obvious problem, which is that it's been abused to sell people online."

Wyden says all this should be a wake-up call for Silicon Valley:

"If the technology companies do not wake up to their responsibilities — and use the power 230 gives them — to better protect the public against sex trafficking and countries that try to hack our political system, you bet that companies can expect (this legislation) will not be the last challenge for them."

NPR researcher Will Chase and Business Desk intern Ian Wren contributed to this report.