A report on this year’s white supremacist mass shooting in Buffalo, New York, asks legislators to criminalize a perpetrator or their accomplice filming a murder — and let states fine people, including the operators of large web platforms, who redistribute the videos. The recommendation is intended to stop terrorists from using livestreams as a propaganda tool, and it comes with additional requests for broadcast television-like restrictions on streaming platforms.
The report was compiled by the office of New York Attorney General Letitia James and released today, five months after James announced an investigation into the May attack. In addition to urging reform in gun control and mental health support, it traces the shooter’s radicalization via barely moderated forums like 4chan and his use of Twitch to livestream the shooting. (Twitch shut down the stream quickly, but the video was subsequently reposted on other platforms.) The attorney general’s report concludes that videos of attacks are “an extension of the original criminal act and serve to incite or solicit additional criminal acts” — and that they should be treated more like videos of child sexual abuse than legal speech.
The restrictions wouldn’t apply to police body cameras or bystander videos
Consequently, James urges New York and other states to criminalize “the creation by the perpetrator, or someone acting in concert with the perpetrator, of images or videos of a homicide.” The restrictions would not apply to bystanders filming a murder or to media captured “passively,” including police body cameras. The report recommends civil penalties for “distribution and transmission of this content,” including by web services that can’t prove they’ve taken “reasonable steps” to remove illegally produced videos.
Adding extra criminal penalties to perpetrators recording a murder seems unlikely to deter figures like the Buffalo shooter, who already faces the death penalty on hate crime charges. But it lays the groundwork for bringing civil suits (or, in extreme cases, criminal charges) against people and companies that help spread the videos a murderer creates. This would limit the videos’ reach and, thus, their value as propaganda tools.
The recommendation comes with a request that Congress revise Section 230 of the Communications Decency Act, which protects web services from legal liability over illegal user-generated content. It suggests a variation of a fairly well-known proposal by author and University of Virginia law professor Danielle Citron, who has suggested that sites earn Section 230 protections by demonstrating they’ve taken reasonable steps to address illegal content.
If states ban transmitting perpetrator-created videos of murder, the change to Section 230 would let people sue services for hosting them. The proposal is designed to allow particularly hard crackdowns on “fringe websites” that practice little to no content moderation, including 4chan.
Streaming platforms would have to introduce broadcast TV-style delays for some users
James is also pushing for restrictions on livestreaming platforms, citing their “repeated use by hate-fueled mass shooters to broadcast their massacres.” (Prior to the Buffalo shooting livestream, a white supremacist shooting in Christchurch, New Zealand, was similarly broadcast live over Facebook.) Platforms that want Section 230 protections, James suggests, should be required to delay livestreams for users who are “not verified or that fail to meet other trust factors, such as livestreams from users without a documented history of streaming within the platform’s policies, or with few friends/followers.”
Platforms should also be “required to restrict algorithmic promotion of such livestreams,” James recommends. She compares the delays to live television broadcasts, which let networks clip out profanity or other objectionable content.
As the report notes, there’s precedent for making videos or images of a crime illegal. Child sexual abuse material (or CSAM) isn’t considered protected speech due to the harm its existence and production involves. And the penalties James suggests aren’t as harsh as the criminal charges that transmitting or possessing CSAM can entail.
It’s not clear how far a ban on “transmission” could stretch
Still, the rules would raise difficult First Amendment questions. In 2010, the Supreme Court struck down a law banning videos that depicted illegal cruelty to animals, deciding (among other things) that the balance of harm wasn’t severe enough to justify limiting speech rights. The report refers to videos of murders as “obscene,” but it’s not clear if this is supposed to be a legal description since US obscenity law is typically limited to sexual content. Groups like ISIS have filmed murders as a form of propaganda, but while sites have been sued for letting them spread, it’s typically been over supporting a banned international terrorist group rather than the media itself.
It’s also not clear how far a ban on “transmission” would stretch. The stated goal is a crackdown on sites that facilitate spreading propaganda videos, but it would logically penalize individuals who post copies of them as well. While this doesn’t seem like the intent of the proposal, a broadly written law could even treat copying media as “transmitting” it, which could implicate anyone who watched a video because viewing digital media usually creates a temporary copy on a user’s device.
James isn’t in a position to make laws, so it’s possible none of these recommendations would be adopted by Congress or state lawmakers. But as legislators deal with increasingly visible white supremacist terrorism, her suggestions may find a ready audience — and would constitute a dramatic change in American speech law.