My Senate Testimony on SESTA + SESTA Hearing Linkwrap

September 25, 2017 · by · in Content Regulation, Derivative Liability, Internet History

drudge sirenLast week, the Senate Commerce Committee held a hearing on the Stop Online Sex Trafficking Act of 2017 (SESTA). I testified as an academic expert on Section 230. My remarks:

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I appreciate this opportunity to testify about the Stop Enabling Sex Traffickers Act of 2017. Sex trafficking is a horrific crime, and I applaud Congress’ ongoing efforts to combat it. However, I am concerned that SESTA is not the right solution to stop sex trafficking.

Specifically, SESTA will counterproductively lead to more socially harmful content and more online sex trafficking promotions. Instead of stopping bad actors, SESTA will help them proliferate. To understand why, it’s helpful to review why Section 230 has worked so well.

When I started practicing Internet Law in 1994, before Congress enacted Section 230, we advised online services to handle third party content and activity in one of two ways. The service could either: (1) accept that it will be fully liable for third party content, and manage that risk by exercising editorial control through content pre-screening or other costly and cumbersome editorial procedures, or (2) take minimal steps to moderate third party content and thereby avoid any knowledge that might lead to liability.

Section 230 mooted that advice. Section 230 instead allows online services to safely adopt a wide range of moderation practices between those two extremes. By reducing online services’ moderation costs and liability exposure, Section 230 spurred new innovative services and fostered their growth, contributing to the Internet’s success. Virtually every waking hour of every day, we use online services that owe their existence to Section 230’s protections.

SESTA would reinstate the moderation dilemma that Section 230 eliminated. Because of Section 230, online services today voluntarily take many steps to suppress socially harmful content (including false and malicious content, sexual material, and other lawful but unwanted content) without fearing liability for whatever they miss. Post-SESTA, some services will conclude that they cannot achieve this high level of accuracy, or that moderation procedures would make it impossible to serve their community. In those cases, the services will reduce or eliminate their current moderation efforts. As more services do less to moderate third party content, we will see more socially harmful content online that would have been moderated today. Indeed, some online services that are actively suppressing sex trafficking promotions will stop those efforts, leading to the unintended consequence that SESTA will foster the expansion of online sex trafficking promotion.

SESTA tries to avoid the moderation dilemma by focusing on “bad actors” who promote sex trafficking. This doesn’t work because only some sex trafficking promotions clearly self-identify as such. Sex trafficking promotion can take less obvious forms, such as online prostitution ads, ads for adult services that are legal, and indeed every type of user content ranging from videos to dating profiles to message board comments to tweets (and use coded phrases and euphemisms to mask the promotional objective).

As a result, online services can’t magically find and eradicate only the online sex trafficking promotions. Automated filters are costly and suffer from high error rates. Furthermore, if the services decide to moderate their content, they will have to undertake the larger and harder effort to review their entire universe of third party content—even content that lacks any obvious “red flags”—to find every impermissible promotion. So SESTA doesn’t limit itself to bad actors; it applies to the entire Internet and force services doing moderation to comprehensively review all content they receive.

Finally, SESTA isn’t necessary to fight online sex trafficking promotions. Section 230’s immunity expressly doesn’t apply to federal criminal prosecutions. Congress has enacted numerous crimes against sex trafficking and its promotion, including most recently the SAVE Act passed just two years ago to target sex trafficking promotions on Backpage. If the Department of Justice prosecutes Backpage for any crimes Backpage may have committed (whether the SAVE Act or other crimes), Section 230 will not shield Backpage. A federal grand jury is currently investigating Backpage. Congress should wait for the results of that investigation—which I hope will come soon—to help identify if any gaps exist in the law and how Congress should best respond.

SESTA is a complex law implicating important social issues. I’m grateful that this committee is paying close attention to it. Thank you for the opportunity to testify.

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You can read my full written testimony here: Sex Trafficking Exceptions to Section 230.

From the hearing, Mike Masnick does a characteristically fantastic job recapping an exchange I had with Senator Blumenthal. I also encourage you to check out Sen. Wyden’s testimony.

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There has been a lot of commentary about SESTA generated in connection with the hearing. Some opposition links that have caught my attention:

There are also some helpful advocacy sites, like Section 230 Matters and Stop SESTA.

On the proponent side, see Mary Leary, In bid to amend Communications Decency Act, Congress must side with trafficking victims. A sample of her piece:

The bad news is that the tech companies and big business are fighting this and raising spurious claims that it will “gut the internet” and end online free speech. These are scare tactics. The Senate bill is four pages long and does nothing more radical than update the CDA to include sex trafficking – a crime that did not exist in 1996 – and clarify that the immunity provision is not intended to protect those who knowingly act to assist human sex traffickers.

How many distortions can you count in these 3 sentences?

More SESTA-Related Posts:

* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity