Internet Archive Sues to Stop Dangerous New Jersey Law

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
+1 415 436-9333 x127

Internet Archive Sues to Stop Dangerous New Jersey Law
Putting Online Service Providers at Risk

Hearing Set for 10am Friday in Newark

Newark, NJ – The Internet Archive has filed a new legal
challenge against a New Jersey state law that aims to make
online service providers criminally liable for providing
access to third parties’ materials, conflicting directly
with federal law and threatening the free flow of
information on the Internet. A hearing on the Internet
Archive’s request for a preliminary injunction against the
law is set for 10am Friday at the federal courthouse in
Newark.

This is the second time that the Electronic Frontier
Foundation (EFF) is representing the Internet Archive in
order to block enforcement of a law that’s aimed at
combatting online ads for underage sex workers but instead
includes language that could put online libraries and other
service providers at risk. The New Jersey statute is an
almost carbon copy of a law successfully blocked by EFF and
the Internet Archive last year.

“The Internet Archive strongly supports law enforcement
efforts to combat child sex trafficking, but when lawmakers
aren’t careful, they can undermine the companies that
foster the production and exchange of legitimate online
content,” said Digital Librarian Brewster Kahle, founder of
the Internet Archive. “Our mission is to archive the World
Wide Web and other digital materials for researchers,
historians, and the general public. For us and others to
do this work, we need laws whose effects fall only on
lawbreakers so we can concentrate on the preservation of
history.”

The New Jersey law (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. Especially given the vagueness of the standard,
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 New Jersey law squarely conflicts with both the First
Amendment and federal statute: Section 230 of the
Communications Decency Act (CDA 230). The First Amendment
bars vague criminal statutes because of the obvious risk of
sweeping and improper application, as well as the resulting
chilling effect on behalf of people subject to the law.
Moreover, CDA 230 ensures that Internet intermediaries are
protected from liability for what their users do and
establishes clear national Internet policy to avoid a
confusing patchwork of state laws.

“Section 230 of the Communications Decency Act requires
states to direct their law enforcement efforts towards
punishing criminals for their actions, not the providers of
the online services that they use,” said EFF Senior Staff
Attorney Matt Zimmerman. “The Internet is the greatest
tool for speech and communications ever invented, and it
can be used for everything from inspirational to criminal
purposes. However, targeting entities like the Internet
Archive and other service providers for users’ bad behavior
is enormously shortsighted and puts at risk the socially
beneficial content that their services facilitate.
Congress got it right: online speech is best protected when
the states leave providers alone.”

“Free speech is threatened when states pass vague and
draconian statutes like this one,” said Frank Corrado,
co-counsel with EFF on behalf of the Internet Archive in
this case. “It’s not enough to identify a serious problem
like sex trafficking. To fight it, especially when speech
is involved, the state has to be careful with its solution.
The state of New Jersey clearly did not do that here.”

Backpage.com, also a plaintiff in last year’s successful
court challenge to Washington’s law, has separately filed
suit asking the court to set aside the New Jersey statute.

For more on the New Jersey case,
Internet Archive v. Hoffman:

For more on the Washington case, Internet Archive v.
McKenna
:

For this release:
About EFF

The Electronic Frontier Foundation is the leading
organization protecting civil liberties in the digital
world. Founded in 1990, we defend free speech online, fight
illegal surveillance, promote the rights of digital
innovators, and work to ensure that the rights and freedoms
we enjoy are enhanced, rather than eroded, as our use of
technology grows. EFF is a member-supported organization.
Find out more at https://www.eff.org.

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