Warnings From the Queer History of Modern Internet Regulation

In 1996, when the Communications Decency Act—the first major law intended to regulate the internet—went on trial before a federal court months after it was passed, lawyers called on an AIDS activist named Kiyoshi Kuromiya to testify. Kuromiya, a civil rights leader who was also a survivor of Japanese internment, had created an online resource called the Critical Path AIDS Project that provided safe sex tips and a 24-hour hotline to thousands of queer HIV+ people.That work, Kuromiya said, would be criminalized by the Communications Decency Act, a piece of legislation that made it illegal to publish online any “indecent” or “patently offensive” material that could be accessed by minors—a nearly impossible restriction to uphold when it came to the internet. Supporters often framed the CDA as a narrow anti-porn bill that would only apply to minors, but the requirements it imposed on computer networks and internet service providers were so thinly defined that the law seemed certain to block much more than porn. Though signed into law in 1996, a lower court had placed a stay on its implementation. As the media historian Cait McKinney documented, Kuromiya told the district court that the law would make discussing safe sex online—an essential public health tool—subject to prosecution.
The court agreed with him. Its final decision striking down large swaths of the CDA frequently referenced Kuromiya, and The New York Times wrote that Kuromiya’s story “proved decisive” in the case. A year later, the Supreme Court upheld the ruling. But one piece of the CDA survived the decision: a short section best known as Section 230. That section, which states that interactive computer services, such as websites, are not legally liable for most content that third-party users post, took a much different approach to regulating the internet than the broader bill. The CDA held interactive computer services liable for an entire category of content, while Section 230 gave them breathing room on most everything else (save for federal criminal laws, intellectual property laws, and electronic privacy laws).Today, as Section 230 faces reform and repeal efforts on both sides of the political aisle, with some calling for a return to CDA-style regulation that puts platforms on the hook for large amounts of content, it’s worth revisiting how the early internet regulation impacted queer internet users in the ‘90s. This sordid history shows the pitfalls of overly aggressive internet legislation—and holds warnings for contemporary reforms. Whether it is the “indecent” provision of the CDA or the sex work crackdown in the later Fosta-Sesta law, the brunt of laws that make internet service providers liable for certain categories of posts has inevitably fallen on marginalized users.
Queer people were essential to the fabric of the early internet. At the same time as the CDA was passed, the Associated Press reported that one-third of all chatrooms on AOL involved gay topics, and many onlookers began to jokingly refer to it as “gay-OL.” An executive at Microsoft noted that “the gay community has always been one of the most active groups on line.” Earlier in the decade, Bloomberg claimed that the “Adult” and “Alternative Lifestyles” channels (the latter being a euphemism mostly for queer people), were the busiest on the service provider CompuServe. Yet the same factors that drew queer people online—the ability to connect anonymously to anyone in the world and frankly discuss the realities of sexuality or gender—alarmed conservatives. Democratic Senator J. James Exon, the lead sponsor of the CDA, declared that children were being exposed to “on-line ‘red light’ districts.”