Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)

By guest blogger Nyssa P. Chopra

drudge sirenI’ve been an advocate of anti-human trafficking initiatives since I first became involved with the issue when I worked at the U.S. Embassy in New Delhi in the Bureau of International Narcotics and Law Enforcement. In addition to contributing to the annual Department of State Trafficking in Persons (TIP) Report, I worked with local anti-trafficking organizations to train community vigilant groups to spot and report trafficking across state lines and to set up rehabilitation centers for victims. From there, I focused my dissertation on the economics of human trafficking during my Master’s at the London School of Economics and honed my understanding of the role of the law in combatting human trafficking during law school. Currently, in an effort to push for responsible travel, I’m exploring ways in which the global hospitality and travel industry can coordinate initiatives with private advocacy groups and governments to combat the problem.

Upon first glance, when I saw the latest bill—Stop Enabling Sex Traffickers Act (SESTA)—make its way through Congress, I was glad that human trafficking was finally receiving the level of attention that it warrants. But upon delving deeper into the language and implications of the bill, I found SESTA to be overly broad and much more detrimental than helpful to the anti-human trafficking movement. To be frank, I’m surprised at the level of support that it has received, especially from anti-human trafficking groups and organizations. I will continue to follow its developments, but from what I have seen and read so far, I have a number of legal and policy concerns about its current structure.

Our current Internet setup is a complex system of online intermediaries with user-generated content—web hosting providers, social media platforms, news websites—all of which we use to speak out and communicate with each other. The main reason we’re able to enjoy a free flow of ideas is because of Section 230 of the Communications Decency Act of 1996—a law that shields platforms from certain types of liability for their users’ speech. Without those protections, most online intermediaries would not exist in their current form; the risk of liability (and the cost of litigation) would simply be too high. However, while Section 230 limits civil liability, an important thing to note is that it is not a carte blanche for online service providers; platforms still can be held accountable for violations of federal criminal laws by its users.

Under SESTA, online service providers would be held accountable for both civil and criminal liability, which in turn, would likely make online intermediaries rethink their platforms and reassess how people communicate on their sites. Aside from the serious free speech issues, it would also stifle innovation and competition and put small businesses in peril, as big tech giants such as Facebook and Google would enjoy a huge advantage—smaller platforms would not have the resources and funds to handle the inevitable litigation and heavier caseload.

This is only one such scenario; SESTA could also lead to online intermediaries employing a system that automates the filtering of users’ speech. When platforms rely too heavily on automated filtering, it almost always results in some voices being silenced. And the most marginalized voices in society, including victims looking for help online can be the first to disappear. Machines should not be trusted as the final arbiters of online speech, but many online communities would have little choice but to mitigate the risk that SESTA would pose by investing heavily in policing their members’ speech.

In addition, I believe that SESTA may force bad actors to get more clever with how they market and advertise online. Currently, due to their wide accessibility and visibility, websites such as Backpage that have been deemed to be problematic and facilitate human trafficking transactions have enabled individuals and nonprofits to find and recover family members and have served as a resource to identify and rescue victims. As a result, SESTA is more likely to eliminate a crucial lifeline of trafficking victims and less likely to stop traffickers from carrying out their illegal activities. If it’s not Backpage, then they’ll find another channel—one that is much less visible and would make it much harder to find victims.

If SESTA was truly effective in helping those marginalized voices and combating the issue (I haven’t seen any evidence to support its positive contribution to the anti-human trafficking movement), then a discussion about balancing free speech interests with fundamental human rights could be a fruitful one, and I would absolutely support it. But as the bill stands today, it doesn’t help victims, and in many cases, hurts victims, making it a bad policy. So while I appreciate the spirit of SESTA, I question its efficacy in combating the issue and believe it will do more harm than good.

More SESTA-Related Posts:

Another SESTA Linkwrap (Week of October 30)
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