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.”
On January 8, 2017, the Senate subcommittee released its final report, titled “’s Knowing Facilitation of Online Sex Trafficking.” It pushed the theory that Lacey, Larkin, Ferrer, and their employees had invalidated their liability protections under Section 230: Rather than removing illegal and obscene content, the Senate said, Backpage had helped develop it, using clever moderation practices to “sanitize the content” and conceal it from the eyes of the law—all in the name of earning a few extra dollars.