Recent SESTA Developments (A Linkwrap)

Publicly, it’s been a little quiet on the SESTA/Wagner bill front since the House hearing in early October. However, activity is taking place behind the scenes. Proponents keep adding cosponsors: now 35 in the Senate and over 160 in the House. Also, backroom discussions are taking place over proposed wording changes. My take is that the proponents are conceding very little ground, despite some obvious problems with the bills that everyone seems to acknowledge should be fixed.

While the backroom activities continue, here is a rundown of recent links:

* Irrespective of its effects on Section 230, it remains unclear if SESTA/Wagner bill actually help sex trafficking victims. You may recall that several anti-sex trafficking advocacy groups opposed SESTA for that very reason (Freedom Network USA, Sacramento Sex Workers Outreach Project, and SWOP-USA). A newly posted paper, Craigslist’s Effect on Violence Against Women, gives us additional data to consider:

Craigslist erotic services reduced the female homicide rate by 17.4 percent. We also find modest evidence that erotic services reduced female rape offenses. Our analysis suggests that this reduction in female violence was the result of street prostitutes moving indoors and matching more efficiently with safer clients.

I expect we’ll have more to say about this paper.

* I made my 17th appearance on This Week in Law (TWiL), featuring superstar host Denise Howell. We spent the first hour discussing SESTA and then segued into a discussion about the Small Justice v. Xcentric ruling. Watch the video.

* The Recorder: In-House Counsel Hold Differing Views on Sex-Trafficking Bill: Quoting Josh King of Avvo as saying “SESTA is a horrible and counterproductive bill.” In an attempt to create faux balance, the article cites “heavy-hitter” bill proponents of Fox, IBM, Disney, HP and Oracle–companies with minimal exposure to user-generated content and little expertise on the law’s subject matter.

* Politico: “Tech companies spend big on fight over sex-trafficking bills”: Google, Facebook, Amazon, Microsoft, and Apple all reported on their lobbying forms that they lobbied against SESTA and the Wagner bill (Apple only reported lobbying on Section 230, but surely it related to SESTA). Oracle and IBM reported lobbying in favor of SESTA.

* In early October, the House Judiciary Committee’s Crimes Subcommittee held a hearing on the Wagner bill. In her written testimony, Prof. Mary Leary of Catholic University Law School wrote: “Importantly, the legislation leaves Section 230(c), the Good Samaritan immunity section, untouched” (bold in the original). This resembles Sen. Portman’s claim that SESTA doesn’t amend the good samaritan provisions of Section 230(c)(2), a claim I already debunked (and, I believe, most staffers now realize isn’t true, even if Sen. Portman keeps making it). However, Prof. Leary apparently is making an even broader claim that the Wagner bill doesn’t “touch” Section 230(c) at all, not just Section 230(c)(2).

I repeatedly reached out to Prof. Leary asking her to clarify this claim, but she did not respond to my inquiries. Thus, I’m left to speculate how anyone could make this claim–given that the whole point of the Wagner bill is to limit Section 230(c)’s immunity. From my perspective, Prof. Leary’s claim appears to be 100% false–and such a gross misunderstanding of the bill it was designed to support that, I think, the bogus claim taints the entire testimony’s credibility.

Trying to imagine any way Prof. Leary’s claim could be true (without any clarification from her), the best I could come up with is that the Wagner bill would not actually change any words in Section 230(c), it would just amend other parts of Section 230. If that’s where Prof. Leary was going, let’s look at a similar example:

Original Section 1: It’s unlawful to intentionally kill another person.

Newly added Section 2: Section 1 doesn’t apply on any day ending in a “y.”

The newly added Section 2 doesn’t “touch” the wording of Section 1, but I don’t know any credible person who would publicly claim that Section 2 leaves Section 1 “untouched.” Is this really how we’ll make the sausage?

* Cathy Gellis had two interesting posts at Techdirt: (1) “Beyond ICE In Oakland: How SESTA Threatens To Chill Any Online Discussion About Immigration” and (2) “A Joke Tweet Leads To ‘Child Trafficking’ Investigation, Providing More Evidence Of Why SESTA Would Be Abused.” I’d like to think her examples are over-the-top, but her posts deserve your consideration.

More SESTA-Related Posts:

* Recent SESTA Developments (A Linkwrap)
* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* 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) (guest blog post)
* 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