SAN FRANCISCO — The internet is over.
That, at least, is what one might think reading reactions to a bill introduced in the Senate on Tuesday. U.S. Sen. Ron Wyden, an Oregon Democrat and staunch ally of the tech industry, warned the legislation would take a “wrecking ball” to a “fundamental pillar” of the internet. The Internet Association, which represents web giants like Amazon and Google, predicted it would invite a “wave of frivolous and unpredictable” litigation against companies.
All the fuss has to do with the Stop Enabling Sex Traffickers Act, or SESTA. The bill would amend Section 230 of the Communications Decency Act, and take away some of the immunity that user-driven internet platforms like Twitter, Yelp and the now-infamous Backpage.com have relied on as a trusty shield against both civil and criminal lawsuits. It’s perhaps no surprise, then, than internet companies seem to invariably see this as a bad thing.
But just how broad a step would SESTA take—and what would be its unintended consequences, if any? That seems harder to pin down.
In a press release announcing the bill, Republican Sen. Rob Portman and a bipartisan group of 20 of his colleagues called the legislation a “narrowly-crafted solution designed to protect women and young girls from modern-day slavery.” The bill is just four pages long, and would accomplish two things.
First, it would strip away the immunity that website operators currently have from criminal or civil claims over user-posted content if they relate to sex trafficking of adults or children. It would also broaden federal criminal law to capture “knowing conduct” by an individual or entity that “assists, supports, or facilitates” such trafficking—ostensibly putting internet companies on the hook if they knew about trafficking-related posts and turned a blind eye.
The blowback has not to do so much with the objective of stamping out trafficking, but with what critics say would be the obvious side-effect: that internet companies would be forced to become tighter “gatekeepers” of what gets posted online, or else be potential targets for millions of dollars in civil damages or perhaps even more severe criminal punishment.
Eric Goldman, a Santa Clara University law professor and strong advocate of Section 230, wrote in a blog post that the biggest problem caused by the bill—were it to pass—would be that it might clear the way for states to enact laws obligating companies to more aggressively screen their content or authenticate their users. (Goldman also spoke at length about the issue in a podcast with Law.com on Monday. Listen here.)
That fear was echoed by Emma Llansó, director of the Free Expression Project at the Center for Democracy & Technology, who said the bill would “shred” the legal certainty created by Section 230′s current federal pre-emption. Instead, she said, it would “expose all website operators, social media networks, video-hosting platforms, blogging sites, and other hosts of third-party content to potential liability under a patchwork of state criminal and civil laws.”
Not everybody sees it the same way. Yiota Souras, senior vice president and general counsel of the National Center for Missing & Exploited Children, said in an interview Tuesday that the fears expressed by internet companies are overblown.
Companies don’t currently have an obligation to monitor what their users post under the law, and that wouldn’t change, she said. “I don’t agree there’s anything in the bill that would create those kinds of additional requirements.” It also wouldn’t mean that internet companies would necessarily be held liable for sex-trafficking-related posts—that would have to be proven in court. It would just remove what Souras called their “front-door” immunity.
It’s also worth noting that this wouldn’t be the only exception to Section 230 immunity. The law already has an exception for federal criminal prosecution of claims relating to child pornography.
The bill is the first of its kind to be endorsed by Souras’ organization. Legislation introduced earlier this year in the House, which would have more broadly expanded the federal criminal trafficking statute to rope in internet companies, did not gain its support because of the more sweeping approach, she said.
The legislative effort has been driven in large part by the outcry over Backpage, the online classified ad site that earlier this year shuttered its “adult services” section. The company has been the subject of a number of thus-far unsuccessful criminal and civil cases over allegations that it facilitated trafficking. After the Senate released a report saying that Backpage actually edited adult ads, the law firm Ropes & Gray filed another suit in June on behalf of three victims of child sex trafficking who allege they were raped hundreds or thousands of times.
Goldman and other critics of the Section 230 amendment have also questioned whether the bill might have the counterproductive effect of disaggregating sex listings or pushing them onto the “dark web”—making it harder for law enforcement to find victims.
Souras argued that idea doesn’t have a lot of “business logic.” Sex traffickers need to have a big market that is easily accessible to the public to make their crimes profitable, she said. “The dark web is not commercially viable for this. So I don’t think that is going to be a likely scenario.” (Souras also compared that hands-off approach to police choosing not to arrest someone selling drugs on one street corner just because they might go deal on another corner later.)
SESTA will go to the Senate Committee on Commerce, Science & Transportation, on which seven of the bill’s co-sponsors sit. They include both senior Republicans and Democrats, such as Missouri Republican Sen. Roy Blunt, and Florida Democratic Sen. Bill Nelson, the minority ranking member on the panel.
With Congress on recess for August, it seems unlikely the bill will move soon. But this is a space to watch for the fall. “When they come back in September I would expect there to be really strong movement,” Souras said.