It’s time for an online Civil Rights Act

Today’s white supremacist and neo-Nazi social media trolls have much in common with the angry mobs that beat civil rights activists at lunch counters, defaced houses of worship and stood in the schoolhouse door. Both then and now, these hateful forces sought to disenfranchise and exclude minorities and women from modern society. The tech industry has catalyzed a new generation of hate groups looking to provoke tensions and precipitate violence online. The time has come to deploy civil rights laws to the digital economy.

Hateful activities on social media platforms aimed at racial, ethnic and religious minorities, women and the LGBTQ community are not harmless; they terrorize and interfere with a person’s engagement with the digital public square in a manner that chills speech and stifles the civic participation of entire targeted communities. Hateful trolls promote and incite real-world hate crimes as well, causing their targets to live in fear for their safety.

{mosads}It has become clear that major online platforms are either unable or unwilling to fix the problem of online abuse.

Fifty years ago, the civil rights movement ushered in legislation that helped integrate brick-and-mortar commerce nationwide, through public accommodations laws and the sacrifice and dedication of countless men and women committed to combating racism and other forms of discrimination.

A public accommodation is a private business that offers its services to the public at large. The Civil Rights Act of 1964 created a means to combat unjust discrimination and segregation in many areas of the 20th century’s economy, transforming our nation for the better. Many of our civil rights milestones of the last fifty years would not be possible without the equal right to use public accommodations.

But because these laws were written decades ago, they did not anticipate the Internet. While public accommodations laws apply to online businesses in several states, like California and New York, some other state and federal laws have not yet addressed the issue. We can close these gaps by clarifying the definition of what counts as a public accommodation. While this proposal requires only brief legislation, the civil rights impact would be monumental. In the meantime, civil rights advocates should assertively use the state laws that clearly apply to online commerce.

Online public accommodations laws should protect civil rights in two key ways:

First, it is illegal to interfere with, threaten, coerce, or otherwise impede a person’s use of a public accommodation because of their immutable characteristics, such as race or religion. Public accommodations laws, applied to large Internet platforms, should provide a direct recourse against some of the endemic harassment and intimidation of racial and religious minorities, women and members of the LGBTQ community on many platforms. In addition to being able to bring civil lawsuits, there are criminal laws to punish those who use violence or threats of violence to interfere with public accommodations.

Second, it is illegal for a public accommodation to directly discriminate against individuals because of their immutable characteristics. If a business opens its doors to the general public, then it should not arbitrarily or unfairly deny service to anyone. Large Internet-enabled services should be no different. If a social media platform chooses to design their system in a way that is discriminatory, the company should be held legally accountable for that choice.

Public accommodations protections for large online platforms would not be burdensome to the Internet economy. Making websites safer for disenfranchised and targeted communities will increase their engagement and the profits derived from that engagement. Brick-and-mortar businesses have thrived under these laws for over fifty years; this would simply level the playing field between online and offline businesses to ensure equal expectations across all streams of commerce.

At the same time, we can protect online innovation and competition with reasonable size thresholds that exempt small Internet startups while holding large incumbents accountable. Extending public accommodations protections also does not require any changes to the Internet laws that built our modern online world, such as the Communications Decency Act. This proposal will not break the Internet.

Public accommodations laws are strong, established, tested, well-understood and balanced civil rights protections. They defend the dignity and equal opportunity of all individuals to participate fully in our society. Decades of experience have demonstrated their success in integrating many aspects of offline commerce. As hate and discrimination surge to threaten online communities, it is time to update our civil rights toolkit.

Kristen Clarke is the president and executive director of the National Lawyers’ Committee for Civil Rights Under Law. David Brody is an associate counsel and fellow for privacy and technology at the Lawyers’ Committee for Civil rights Under Law.