By Elliot Harmon
There’s a new bill in Congress that would threaten your right to free expression online. If that weren’t enough, it could also put small Internet businesses in danger of catastrophic litigation.
Don’t let its name fool you: the Stop Enabling Sex Traffickers Act (SESTA, S. 1693) wouldn’t help punish sex traffickers. What the bill would do is expose any person, organization, platform, or business that hosts third-party content on the Internet to the risk of overwhelming criminal and civil liability if sex traffickers use their services. For small Internet businesses, that could be fatal: with the possibility of devastating litigation costs hanging over their heads, we think that many entrepreneurs and investors will be deterred from building new businesses online.
Make no mistake: sex trafficking is a real, horrible problem. This bill is not the way to address it. Lawmakers should think twice before passing a disastrous law and endangering free expression and innovation.
SESTA would weaken 47 U.S.C. § 230, as enacted by the Communications Decency Act (commonly known as “CDA 230” or simply “Section 230”), one of the most important laws protecting free expression online.
You might remember the fight over the Communications Decency Act of 1996 (CDA), a law designed to put harsh restrictions on free speech over the Internet. The bill passed despite overwhelming opposition from Internet users, but with EFF’s help, the bill’s censorship provisions were gutted by the Supreme Court in 1997.
One key piece of the bill that remained was Section 230. Section 230 deals with intermediaries—individuals, companies, and organizations that provide a platform for others to share speech and content over the Internet. Section 230 says that for purposes of enforcing certain laws affecting speech online, an intermediary cannot be held legally responsible for any content created by others. The law thus protects intermediaries against a range of laws that might otherwise be used to hold them liable for what others say and do on their platforms.
Section 230 laid the groundwork for the explosion in U.S. Internet business that’s taken place over the past two decades. Think of how many websites or services you use host third-party content in some way—social media sites, photo and video-sharing apps, newspaper comment sections, and even community mailing lists. All of those providers rely on Section 230. Without Section 230, these businesses might have to review every bit of content a user wanted to publish to make sure that the content would not be illegal or create a risk of civil liability. It’s easy to see how such measures would stifle completely lawful speech.
If SESTA becomes law, it will place that very burden on intermediaries. Although large intermediaries may have the resources to take on this monumental task, small startups don’t. Internet startups—a major growth engine in today’s economy—would become much more dangerous investments. Web platforms run by nonprofit and community groups, which serve as invaluable outlets for free expression and knowledge sharing, would be equally at risk.
While SESTA’s purpose may be only to fight sex trafficking, it brings a deeper threat to many types of free expression online. The bill would create an exception to Section 230 for enforcement of any state criminal law targeting sex trafficking activities. It would also add an exemption for federal civil law relating to sex trafficking (as it stands now, Section 230 already doesn’t apply to federal criminal law, including laws against trafficking and receiving money from child sex trafficking).
Let’s unpack that. Under SESTA, states would be able to enact laws that censor the Internet in broad ways. As long as those laws claim to target sex traffickers, states could argue that they’re exempt from Section 230 protections. As Eric Goldman points out in his excellent analysis of SESTA, Congress should demand an inventory of existing state laws that would fall into this new loophole before even thinking about opening it.
There’s a long history of states passing extremely broad censorship laws in the name of combatting trafficking. Just this year, legislators in numerous states introduced the Human Trafficking Prevention Act, a bill that has nothing to do with human trafficking and everything to do with censoring sexual expression. Imagine all of the ways in which state lawmakers would attempt to take advantage of SESTA to curb online speech in their states. If they can convince a judge that the state law targets sex trafficking, then SESTA applies. That would create a ton of uncertainty for Internet intermediaries.
It gets worse. Section 230 contains a “Good Samaritan” provision that protects intermediaries when they take measures to filter or block certain types of content. This section ensures that intermediaries are not punished for mistakes they might make in removing or failing to remove user-generated content. In other words, a service blocking some content does not make it liable for what it didn’t block.
SESTA would compromise the Good Samaritan provision by imposing federal criminal liability on anyone who merely knows that sex trafficking advertisements are on their platform. Platforms would thus be discouraged from reviewing the content posted by their users, cancelling out the incentive to review, filter and remove provided by the Good Samaritan provision.
That puts companies that run online content platforms in a difficult bind. Any attempt to enforce community conduct guidelines could be used as evidence that the company knew of trafficking taking place on its service. (As we mentioned above, federal criminal law already applies to intermediaries.) The two choices facing platforms would seem to be to put extremely restrictive measures in place compromising their users’ free speech and privacy, or to do nothing at all.
When considering a policy regulating Internet businesses, it’s always good to ask yourself whether it would bar new players from competing with established ones. Placing overly burdensome requirements on startups has the effect of reinforcing the dominance of incumbent companies.
Indeed, one of the benefits of safe harbors is that they allow intermediaries to enter the market with very limited resources. Without Section 230 (and its corollary in the world of copyright, Section 512 of the Digital Millennium Copyright Act), the explosion in social media sites and apps would not have happened—or at least the space would look very different than it does today. Facebook, Snapchat, Airbnb, and countless other popular online services began as tiny two- or three-person companies. Without the protections in Section 230, a single lawsuit over the actions of one of its users could have destroyed one of those companies in its early stages. Compromising Section 230 would be catastrophic for high-growth startups.
One company in particular has been central to the discussion around SESTA, the controversial classified ads site Backpage. But as Mike Masnick points out in Techdirt, the Department of Justice already has the authority to prosecute Backpage if it breaks federal criminal law. And besides, Backpage has shut down its “adult services” section and those users have moved on to other platforms. What’s more, a federal grand jury is now considering indicting Backpage under current criminal law. It would be a mistake for Congress to enact a law that would burden every intermediary, not only bad actors.
It’s time to act. The Senate bill has 24 sponsors already, nearly a quarter of the Senate. We’re afraid that its supporters are seeking to rush it through quickly so that they can claim it as a rare bipartisan victory during this year of Congressional gridlock.
There’s been a similar bill in the House of Representatives (H.R. 1865) since April. The House bill is even more frightening than SESTA: it defines the state law exemption to Section 230 even more broadly than SESTA does, and it creates a new federal crime specifically designed to prosecute intermediaries.
Everyone wants to combat human trafficking. If Congress doesn’t hear from us in the next day or two, they’ll make the mistake of thinking of this dangerous bill as an easy, uncontroversial win.
Twenty years ago, the Internet came together against a fundamental threat to free speech online. We won, and in the process, we got one of the most important protections for speech and innovation on the Internet. It’s time to come together again. Let’s tell Congress not to make a short-sighted political decision that would spell disaster for the Internet.