With news that Silk Road has been taken down by the FBI for providing "several thousand drug dealers" the opportunity to sell "hundreds of kilograms of illegal drugs," it might surprise you to learn that a well-established site, Topix.com, has served as an illegal drug marketplace for years. As an example, look at one of the Topix.com forums devoted to buying and selling OxyContin, Roxicodone, Oxycodone, and heroin. Buyers and sellers operate freely there. And with a few additional searches on Topix, you’ll find opportunities to buy LSD, cocaine, pot, ketamine, Adderall, MDMA, and pretty much any other drug you might want, illegal or not.
This revelation came as a shock to Steven and Lauren Witkoff. They're the parents of Andrew, a 22-year-old who died of an Oxycontin overdose in 2011. His story is a sad but predictable one. He had been in Los Angeles for in-patient rehab related to a drug addiction. He graduated to a halfway house. He was living among sober companions but no one monitored his internet traffic. He did a quick Google search for "Where to buy Oxycodone Los Angeles" and landed in a Topix forum, which was the number one Google result. He responded to a thread — "Los Angeles, help me out! F2F looking!!!" Within a matter of hours, by the evening of August 12th, 2011, he had the drugs in his hands. He was dead two days later.
Within a matter of hours, he had the drugs in his hands
On August 12th, 2013 — on the two year anniversary of Andrew’s F2F request — his parents filed a civil lawsuit against Topix in the Los Angeles County Superior Court. The lawsuit claims that the company perpetuated "a public nuisance" by allowing drug sales to happen openly on the site. The lawsuit says Topix operates a "drug bazaar," and that its inability to monitor and halt illegal drug activity resulted in the wrongful death of their son. They’re asking for unspecified damages.
What makes this case interesting is that it’s not supposed to happen. The reason companies such as eBay, YouTube, Craigslist, and Backpage.com — which has had its own trouble with illicit user-generated content — aren’t constantly in violation of criminal and civil laws is Section 230 of the Communications Decency Act of 1996. It’s only about 800 words of convoluted policy, but it’s considered by many to be the most important Internet law in the US. The gist is that companies can’t be held responsible for what their users post.
Can Topix be held responsible for what its users post?
Bob Gold, one of the attorneys representing the Witkoffs, isn’t blind to all that. He knows that people might view this lawsuit as being moot — an attempt to extract money from a corporation in a way that’s seemingly in opposition to federal law. But he makes a few interesting points. First of all, he claims that the kinds of blatant drug sales that happen on Topix violate a California law prohibiting "nuisances" such as "the illegal sale of controlled substances." Secondly — and because of Topix's alleged violation of that nuisance law — he says that Topix's offenses aren't covered by Section 230. Or at least that they should prompt some reconsideration about Section 230’s validity.
That second point is a bit dubious. Section 230 states, "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section" and that "no liability may be imposed under any State or local law that is inconsistent with this section" — suggesting that the federal law is the law of the land and no states can supercede it with their own laws. But if a judge in the Los Angeles Superior Court is sympathetic to the Witkoffs, it could be a ground-breaking case that forces companies to rethink the way they handle user-generated content.
"How difficult would it be," he asks rhetorically, "for a company to set up a software monitoring system to identify when Oxycontin, heroin, cocaine and whatever else are being sold?" He answers his own question: "Not prohibitively difficult, is the answer."
He goes on: "[Section 230] was written at a time when such monitoring software wasn't available. Today — as we know from NSA leaks — it is. So why shouldn't we hold companies like Topix liable for doing what they know they're doing, which is: allowing anyone to buy and sell illegal drugs on the web."
"There is a monitoring system already in place: it's called the police."
Eric Goldman, a law professor at Santa Clara University who oversees the school’s High Tech Law Institute and blogs frequently about internet cases such as this one, categorizes Gold’s argument as silly, if not dangerous to everything we’ve come to expect about free speech on the web.
"To the extent selling [illegal drugs on topix.com] is illegal, there is a monitoring system already in place: it's called the police, who can read publicly posted ads just like everyone else, and they can and do use ads for illegal drugs as investigation leads," he says.
But what about Gold’s assertion that improved "monitoring software" might invalidate Section 230? "I can't imagine [Gold] is arguing that ads for illegal drugs can be magically erased simply by deploying dumb word filters," Goldman says. "After all, they are called ‘dumb’ word filters for a reason: it's trivially easy to get around them, and they often overblock legitimate discussions. Most of us learned that lesson in the 1990s. My favorite early example was the situation when a software program filtered the White House website because it had a discussion about breast cancer."
Another aspect of this discussion is that sites can be held responsible under the Digital Millenium Copyright Act, or DMCA, if their users post copyrighted material. But as long as the site establishes "notice-and-takedown" procedures — and complies with requests to take down copyrighted material — they’re protected and can avoid prosecution. The understanding being that legitimate sites will do whatever possible to comply with requests to take down illegal material when it’s noticed. That’s where Silk Road went wrong, according to the criminal complaint against its purported creator, Ross William Ulbricht. In creating Silk Road, Ulbricht "deliberately set out to establish an online criminal marketplace outside the reach of law enforcement or governmental regulation," the complaint reads.
Topix, on the other hand, does everything it can to be compliant with government agencies.
Topix hosts more than 100,000 comments every day
Jonathan Ward, Topix’s director of community, points out that the site hosts more than 100,000 comments every day, and while they filter for certain keywords — mostly involving hate speech and threats of violence — they’re limited in what they can do. Ward offered an example: he says someone in a small-town forum discussion last week announced an intention to "shoot up a school."
"We have mechanisms in place to try to catch when things like that happen," Ward says. He noted that there are "report abuse" buttons beside every post (which send "thousands of alerts" to Topix offices every day), and, on top of that, they’ve set up a special system for members of law enforcement. That’s how last week’s shooting threat was addressed.
"Very early in the morning," Ward says, "we received a report from the local police in that small town, saying, ‘Hey, someone’s made this post, and we’re taking this seriously. Could you please work with us?’" Topix has an employee hired specifically to work with law enforcement. That person provided location information for the person who made the threat. The school was shut down for the day and, Ward says, the person who made the threat was apprehended.
"Even though this could’ve been like some kid calling in a bomb threat to get the day off school, we take it very seriously and address it when we’re aware of it," Ward says.
Goldman says that’s what companies such as Topix should be doing. And it’s also the best option for keeping our rights of free speech intact on the web.
"Congress has made the ground rules for the Internet very clear."
"In the end, Congress has made the ground rules for the internet very clear," he says. "The federal government can prosecute crimes [committed by individuals] without regard to Section 230," but the sites hosting user-generated content "are not liable for allowing third parties to publish content."
"We might debate the policy merits of that conclusion, but I don't think a bogus and obviously preempted lawsuit does much to advance that debate."