Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration

A new anti-Section 230 bill, the Stop Enabling Sex Traffickers Act of 2017, will be introduced in the Senate imminently, perhaps tomorrow. [UPDATE: It has been introduced as S. 1693]. It is being introduced by six senators (Senators Portman, Blumenthal, McCain, McCaskill, Cornyn, and Heitkamp), and I’ve been told there will be many other co-sponsors.

The Senate bill would create new exceptions to Section 230 for sex trafficking-related claims. The bill covers the same territory as Rep. Wagner’s “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” bill. Though the Wagner bill contained additional problematic provisions, the Senate bill will have the same deleterious consequences for Section 230 and free speech online.

Given the significant co-sponsor support for these bills, it’s pretty clear Congress is on the cusp of gutting Section 230. This is the threat we’ve always knew was coming to Section 230, and in a jiffy, we’re already way behind in trying to save Section 230’s principal benefits.

What the Senate Bill Says

The Senate bill would make the following main substantive changes to Section 230:

1) Adding a new exclusion to Section 230’s immunity for “any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting (i) sex trafficking of children; or (ii) sex trafficking by force, threats of force, fraud, or coercion.”

2) Excluding 18 USC 1595 from Section 230’s immunity. 18 USC 1595 is a federal civil cause of action for sex trafficking victims against the bad guys and “whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.”

3) Adding a new definition to 18 USC 1591 (the same provision that the SAVE Act amended–more on the SAVE Act in a moment), which criminalizes receiving money from sex trafficking, to expand the definition of “participation in a venture” to “include knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates the violation.”

How The Senate Bill Differs From the Wagner Bill

From first circulated draft to introduced draft, the Wagner bill expanded to add a number of additional victim-advocate wish-list items. The Senate bill doesn’t include as many of those wish-list items:

* the Wagner bill would exclude state crimes related to “sexual exploitation of children” from Section 230. The Senate bill lacks this exclusion.
* both bills would exclude civil claims for sex trafficking from Section 230, but the Wagner bill would also exclude civil claims related to “sexual exploitation of children.”
* the Wagner bill would create a new 18 USC 1591 crime specifically targeting intermediaries.
* the Wagner bill also proposes to modify the definition of “participation in a venture,” but using more plaintiff-favorable language than the Senate bill.
* the Wagner bill has more onerous changes to Section 230’s policy statements.

So on balance, the Senate bill omits some of the worst policy ideas from the Wagner bill, but both bills are extremely troublesome. If the Wagner bill is a 10 on the worrisome-meter, the Senate bill is a 9.5.

Problems With the Bill

In my blog post on the Wagner bill, I asked numerous questions about the bill. I’ll recapitulate those questions and ask some new ones here:

* what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill.

* what about the SAVE Act, the law (sponsored by Rep. Wagner) that Congress passed in 2015 to kill Backpage? The bill’s press release doesn’t mention the SAVE Act once, even though it was designed to accomplish the same policy goals. Why not? Did Congress misjudge the policy efficacy of that law? Or perhaps it’s too early to judge the SAVE Act’s efficacy? A federal grand jury in Phoenix is considering indicting Backpage or its executives, and the odds are that the SAVE Act would be key ground for such an indictment. So perhaps Congress has already enacted all of the legislation it needs to kill Backpage…? If so, a new and major exclusion to Section 230 would not add any new policy benefits but would come with substantial policy costs.

* does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking? This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome. Maybe it’s so intuitive (shut down Backpage, victims are better) that members of Congress don’t expect to see any proof, but this is hardly intuitive to me. We’ve seen over and over again that anti-prostitution regulations redirect the demand for prostitution elsewhere. If this bill accomplishes its goal, where will that demand get redirected, and how will that affect victims? We’ve also seen many successful victim protection efforts by law enforcement using the public ads as leads/evidence. What will happen to those enforcement efforts, and what does that mean for the overall protection of victims?

* what existing laws will be newly excluded from Section 230, and how will plaintiffs use those laws? I am extremely confident that none of the bill co-sponsors have comprehensively inventoried the existing state laws that will have tenable causes of action against online intermediaries once Section 230’s immunity is lifted. It could be zero laws (unlikely); it could be hundreds or thousands of new laws. Shouldn’t we model these effects before unleashing those laws?

While the bill co-sponsors may not have much clarity about the impending litigation flood, I imagine that victim advocacy groups and especially class-action lawyers have been thinking heavily about those questions.

We’ve already seen a spate of litigation against social media services over the “material support for terrorists” laws, even though Section 230 clearly preempts those. Without Section 230, the potential financial damages of those cases pose existential threats to every online service because they become financial guarantors of all harms caused by terrorists who used their services. In effect, this law would create the same deep pockets dynamic, except for sex trafficking instead of terrorism, and the potential financial exposure may pose an existential threat to many–if not all–online services.

* irrespective of existing laws, my #1 concern about the bill is what new laws will be enacted to take advantage of the newly plowable regulatory ground. Imagine the following laws:

– a new state law says: “if you don’t authenticate all of your users, you are liable for any non-authenticated content promoting sex trafficking of children”
– a new state law says: “if you don’t pre-screen your content, you are liable for all published posts promoting sex trafficking of children”

If these laws would now escape Section 230, then states may be able to effectively force sites to authenticate *all* users and prescreen *all* content to avoid the new laws’ criminal or civil sanctions. In effect, every state law regulator can try “if you don’t do X, you’ll be liable for Y” laws where Y focuses on sex trafficking of children and X involves efforts or policies by online services whose effects aren’t limited to sex trafficking but would change the Internet as we know it. (I recognize the First Amendment might limit those laws even without Section 230 protection, but even easy First Amendment cases are so much more litigation-intensive than straightforward Section 230 cases).

* what steps would online services proactively take to reduce their risk of liability, and how much would those steps cost them? As usual, Section 230’s real benefit comes from leveling the playing field for new industry entrants; so as the costs of entry go up, we see less entry. What does that mean for the emergence of new socially beneficial services to supplement or replace the existing incumbents? We also would expect more “collateral damage” from any proactive steps taken by service providers, i.e., removal or moderation of completely legal content in the effort to mitigate risk of liability.

I explain more about the serious risks of creating state law criminal exceptions to Section 230 in this 2013 primer.

Odds of Passage

On Friday, the Wagner bill added another SIXTY co-sponsors, raising its total to 98 (roughly 2/3 Republican, 1/3 Democrats). The Senate bill has 6 named co-sponsors, and I’ve been told it may have 25 total co-sponsors. Parallel anti-Section 230 bills with 25% of each house’s membership in support are very, very bad news.

Furthermore, this Congress has already proven that it will advance terrible policy ideas (e.g., 49 Senators voting for a healthcare reform bill that not a single one of them wanted to become law). Section 230 is one of Congress’ best tech policy success stories of the past quarter-century, which apparently makes it a primo reform target for this off-kilter Congress.

The goal of protecting sex trafficking victims is, of course, a compelling one, but policy changes of this magnitude come at a serious cost (putting aside the efficacy question). I wonder if all of the bills’ co-sponsors fully understand those costs. If one of your legislators is a co-sponsor of the bills, you might consider letting them know how you feel.

UPDATE: Other analysis from Emma Llanso of CDT, Mike Masnick of Techdirt, the EFF, Matt Schruers of CCIA, R Street/TechFreedom, Mike Godwin, and Daphne Keller. Letter from civil society groups opposing the bill.

On the proponents’ side: “Joint Statement in Response to Tech Industry Obstruction of Section 230 Legislation“