Anti-Section 230 Bill Advances in Calif. State Senate

The bill originally was proposed in February 2021, purportedly as a means to counter non-consensual intimate imagery and child sex abuse material online. But, as is the case with several bills like the Cortese proposal, critics said the bill’s provisions would directly harm the underpinnings of a free and open internet.

The adult industry trade association Free Speech Coalition wrote a letter to the Senate Judiciary Committee in May of 2021 pressing the members to kill the legislation on grounds that it overlaps with federal law and limits protected forms of speech.

“SB-435 is drafted without a clear understanding of the internet and has significant problems practically and constitutionally which need to be addressed before the bill can be allowed to move forward,” Mike Stabile, the coalition’s director of public affairs, wrote in the letter.

“We agree with Senator Cortese that the distribution of non-consensual intimate imagery (NCII), and particularly child sex abuse material (CSAM) is a major issue, not just in California, but globally,” Stabile added. “Those who create and distribute offensive, immoral and illegal content should be fully prosecuted…The bill as written has serious unintended consequences for both free speech and a free internet.”

Stabile also noted conflicts between the bill and Section 230 of the federal Communications Decency Act of 1996. As presented, SB-435 is in direct contradiction with this federal law. Section 230 has been applied and upheld by numerous federal and state courts and is considered by many to have been so central to the development of the web that it is often referred to as the “First Amendment of the Internet.”

“SB-435 would thus be in clear conflict with federal law and would result in intense and costly litigation, with no current path to implementation,” Stabile noted in the FSC letter.

An amended version of the bill, published earlier this month, is still seen as flawed by Stabile.

Eager to testify for @FSCArmy in opposition of #SB435, an anti-revenge porn bill which would have the perverse (or maybe secretly intended) effect of deplatforming sex workers and sexual speech. https://t.co/l6axhde4Js

— Mike Stabile (@mikestabile) January 12, 2022

Stabile tweeted yesterday that the amended SB-435 is nothing more than “an anti-revenge porn bill which would have the perverse (or maybe secretly intended) effect of deplatforming sex workers and sexual speech.”

“The thing is that, had the Senator worked directly with the adult industry to draft a narrow bill, we could have helped them do it successfully,” Stabile added. “Instead, even with the amendments, it’s hard to imagine how a successful prosecution would happen.”

Stabile also observed that if passed, SB-435 would essentially become California’s version of FOSTA-SESTA.