Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill

On Friday, a Manager’s Amendment to SESTA was announced. The good news is that its revised language slightly improved the bill. The bad news is that SESTA remains bad policy. The worse news is that SESTA is now well-positioned to pass the Senate Commerce Committee and then the full Senate, and any remaining opposition efforts will not stop it. The key remaining open question is whether the SESTA language will propagate to the House’s Wagner bill, or if the more pernicious terms of the Wagner bill could still become law.

What SESTA Does

SESTA amends Section 230 in three ways:

1) It would enable sex trafficking victims to bring civil lawsuits against online services for publishing sex trafficking promotions from third parties.

2) It would enable state attorneys’ general to bring enforcement actions against online services for publishing sex trafficking promotions from third parties.

3) It would expand the scope of the federal sex trafficking crime, exposing online services to greater risk of prosecution for publishing sex trafficking promotions from third parties.

Other SESTA provisions include a policy statement that courts should interpret Section 230 to enable vigorous enforcement of anti-sex trafficking laws and a retroactivity provision extending post-SESTA rules to pre-SESTA activity.

See the Manager’s Amendment redlined against the existing statutes.

What Changed in the Manager’s Amendment

None of these structural elements changed in the Manager’s Amendment. Here are the main changes between SESTA’s initial draft and the Manager’s Amendment:

Clearer linkage of state criminal prosecutions and civil claims to federal law. SESTA’s initial draft authorized state criminal prosecutions “targeting conduct that violates a Federal criminal [anti-sex trafficking] law.” It also authorized unrestricted civil enforcement of the federal sex trafficking cause of action. The Manager’s Amendment clarify that both civil lawsuits and state criminal prosecutions for sex trafficking must prove that the defendant violated the federal anti-sex trafficking crime. This revision has several benefits. It incorporates the federal crime’s high scienter standards into the civil and state law actions, and it imposes the uniformity of a single federal standard on both types of claims.

Note that civil plaintiffs will need to prove the predicate federal criminal violation only by “a preponderance of the evidence” (the typical civil burden of proof), rather than “beyond a reasonable doubt” (the typical criminal burden of proof). I still can’t quite figure out the implications of that. At the same time, civil plaintiffs will need to prove the federal crime violation without the robust discovery tools available to law enforcement.

Authorization of civil AG actions in federal court. SESTA would newly enable state AGs to bring civil suits in federal court:

In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by any person who violates section 1591, may bring a civil action against such person on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.

I don’t understand this provision and why it’s needed, given that SESTA separately loosens the constraints on state AG enforcement of their state crimes. The scope of civil enforcement is still tied to the federal crime, which is good, but giving state AGs a second option to enforce the law is puzzling. I know the bill proponents feel like much of the sex trafficking enforcement work is done at the state and local level, so unleashing the state AGs from Section 230 will put more “cops on the beat.” However, why do they also need a civil action to do that work?

Section 230(c)(2)(A) remains as a defense. In both public and private comments, the proponents kept saying that SESTA preserved Section 230’s Good Samaritan standards even though SESTA restricted both Section 230(c)(1) and Section 230(c)(2). The Manager’s Amendment now expressly indicates that Section 230(c)(2)(A) remains as a defense to any civil lawsuits and state prosecutions newly enabled by SESTA. This is good news, but as I’ll explain in more detail in a separate post, the carveout fundamentally misunderstands the nature of Section 230’s Good Samaritan mechanisms. The short story: Section 230(c)(2) only protects removal decisions, while SESTA enables new lawsuits that will be based on content publication instead of removals, so Section 230(c)(2) doesn’t really apply to the source of SESTA’s new liability. I expect defendants in SESTA-enabled cases will stretch Section 230(c)(2) as far as they can, but the existing caselaw has so severely hampered Section 230(c)(2) that I don’t expect it will help much. A drafting quirk: there’s no clear reason why Section 230(c)(2)(B) doesn’t also apply to SESTA-enabled claims, but the Manager’s Amendment only preserves Section 230(c)(2)(A).

The Senate Commerce Committee report on SESTA might include some additional beneficial language about the value of Good Samaritan protections, but I don’t put much stock in committee reports because they help only when a court finds statutory language sufficiently inscrutable.

Narrowed scope of the federal crime expansion. The initial SESTA draft expanded what constitutes criminal “participation in the [sex trafficking] venture” to include “knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation.” The bill sponsors kept insisting that “knowing conduct” was a high scienter requirement; the opponents kept howling that “knowing conduct” is a nonexistent scienter standard because online services always “know” their conduct.

The Manager’s Amendment revises the language to read “knowingly assisting, supporting, or facilitating a violation.” I hope this change will lead courts to interpret “knowingly” as a high scienter requirement, i.e., the defendant must know that its assistance, support or facilitation constituted a violation. If that’s what happens, this is a helpful change. However, it would have been better if the statute had been even more explicit that “knowing” applied to the legal violation.

Even so, the scope of a new crime of “knowingly facilitating” sex trafficking, and how that would apply to online services publishing third party content, isn’t clear. I’m not sure what steps, if any, online services will take to uniquely mitigate this risk.

How will online services respond to SESTA? 

Now that SESTA’s new liability are all correlated with the federal crime, I expect many online services will not materially change their behavior if SESTA passes. After all, most online services never get close to sex trafficking promotions, and they can deal with stray sex trafficking promotions when they get “knowledge.” (This probably leads to a notice-and-takedown scheme, with all of its downsides, but most services probably already follow that practice for sex trafficking promotions). Or, if an online service finds that users are regularly bringing in unwanted sex trafficking promotions, it can build a more robust content moderation process then.

The bigger services likely already have deployed significant efforts to prevent sex trafficking promotions, and they may double-down on those efforts post-SESTA. The bigger services have legitimate reasons to fear how the state AGs might misuse SESTA’s provisions (recall Mississippi AG Jim Hood’s lawless investigation of Google, done with the encouragement of the entertainment industry), and it’s also possible they will face civil lawsuits from individual victims over stray content they somehow missed. These risks will increase their costs of doing business, but maybe the bigger services can afford those.

SESTA will almost certainly materially change the behavior of smaller online services that sex traffickers could use to promote victims. This could include online classified ad sites, online dating sites, and many others. Those sites will almost certainly feel like they face an existential risk from litigation, and they may (perhaps legitimately) fear their criminal exposure. Thus, I would expect those sites to build new and aggressive content moderation practices, or if it’s too costly to do so (or they fear the risks remain too high), to exit the industry.

SESTA will further encourage litigation against Backpage and perhaps other venues for online prostitution ads. There probably is no saving Backpage at this point anyway.

In a post-SESTA world, online services will more aggressively use automated filters to remove all sex trafficking promotions and anything that might resemble such promotions. In light of the high stakes for making mistakes, I expect we’ll see significant over-filtering of legitimate content. Combined with other ways that online services will feel compelled or coerced to adopt broad filtering, over time we should expect that the machines will munch a wide range of legal and socially beneficial content–all done automatically, with no due process, and with no recourse on the part of filtered speakers.

Why SESTA remains bad policy

If most online services don’t change their behavior post-SESTA, perhaps the Manager’s Amendment to SESTA reduces the bill’s existential threat to the Internet. However, SESTA remains bad policy on many fronts. This post has already mentioned a number of problems with the Manager’s Amendment draft. Let me summarize other objections we’ve raised in prior posts that still apply to the Manager’s Amendment:

* SESTA’s real target is Backpage, and federal criminal law (both the SAVE Act and other existing crimes) already covers Backpage without any changes to Section 230. The DOJ is already conducting a grand jury investigation of Backpage in Phoenix, presumably based on those existing laws. Furthermore, pending civil cases against Backpage may have greater success based on the evidence revealed in the Senate investigation report of Backpage; and California’s pending criminal prosecution against Backpage’s executives shows that Section 230 does not create an impenetrable shield against state prosecutions. All told, it seems quite likely that existing law restricts Backpage despite Section 230, so Congress’ most prudent course would be to let those developments play out before making major changes to one of its greatest legislative success stories of the past quarter-century.

* If the concern is the DOJ’s slow enforcement of existing laws, additional modifications to Section 230 aren’t needed. If it’s a resource constraint problem, that can be fixed with money, not statutory amendments.

* The Manager’s Amendment blunts the Moderator’s Dilemma because it correlates defendant knowledge with the knowledge required for a federal crime that isn’t covered by Section 230 anyway. Still, the knowledge-based standards in the federal crime, combined with the crime’s expansion, do heighten the risks of a Moderator’s Dilemma. Thus, it would not be surprising to see some smaller and less-brand-conscious services dial down their moderation efforts, which could counterproductively lead to an increase in net sex trafficking promotions.

* After SESTA’s changes to Section 230, it’s likely other victim advocacy groups will queue up before Congress wanting similar treatment. Given Congress’ prevailing hostility to Internet companies, it’s possible SESTA will break open the regulatory floodgates and Congress will turn Section 230 into Swiss cheese where every victim advocacy group gets their “justice.”

* Most importantly, we have no reason to believe that SESTA will actually improve the fate of sex trafficking victims, and we have several reasons to believe it will actually make their circumstances worse by making victims harder to rescue and perhaps exposing them to more dangerous physical conditions. There are many ways Congress can productively assist sex trafficking victims other than SESTA.

Some other concerns: the retroactivity provision probably is unconstitutional. Also, a point I haven’t blogged: a civil damages remedy for sex trafficking victims against online services creates a race among victims. The first successful plaintiffs might deplete the defendants’ funds available for other victims with subsequent legitimate claims, creating a more uneven system for compensating victims than the existing federal criminal provision for victim restitution.

Procedurally, what happens next?

On Friday, shortly following the announcement of the Manager’s Amendment, the Internet Association announced that it was now supporting, not opposing, SESTA. Some folks in the opponents’ community accused IA of selling out and expressed frustration with IA’s flip.

However, IA’s move was completely understandable. The Senate Commerce Committee scheduled a markup for Wednesday. SESTA was guaranteed to pass the Senate Commerce Committee in the markup with or without changes. As a result, once the markup got scheduled, the opponents lost most of their remaining leverage (not that they had much leverage in the face of 36 Senators co-sponsoring the bill). The IA presumably felt that the Manager’s Amendment had smoothed the roughest edges of SESTA and sufficiently protected its members’ interests, so it cut the best deal it could. At that point, flipping on the bill made sense. Publicly opposing SESTA had spurred many headlines and “think pieces” about how Internet companies enable sex traffickers and other bad guys. The IA and its members don’t regain any goodwill through the flip, but they do reduce further erosion of goodwill–a much-needed step as Congress has turbocharged its Silicon Valley bashing.

Meanwhile, based on the brokered deal, I expect additional new cosponsors to SESTA will be announced. This should put the number of cosponsors nearer to a majority of the Senate. With the removal of a primary industry opponent, all undecided Senators will view the brokered deal as having resolved the matter, so any remaining opposition is surely unlikely to slow down the bill in any meaningful way.

There is still a chance for helpful amendments at the markup, but the odds are low, and any further changes are likely to be minor. I am submitting a response to Questions for the Record (asked by Sen. Cortez Masto) that will propose a specific amendment to the Manager’s Amendment, although the chance of its adoption is de minimis. As indicated, a committee report might provide some additional helpful language of near-zero consequence.

The only remaining hitch is how Sen. McConnell handles Sen. Wyden’s objections to SESTA. If Sen. Wyden places a hold on the bill, the Senate can’t approve the bill by unanimous consent, and any Senate floor time used to overcome the hold will come at the expense of other Senate priorities. It’s possible (but unlikely) that Sen. Wyden will not place hold (or lift it). Otherwise, Sen. McConnell will have to decide when he’s ready to allocate floor time to this. There is so much work the Senate must get done, but I doubt Sen. McConnell will defer a floor vote for too long given the lengthy co-sponsor list.

Once SESTA passes the Senate, the main question will be what happens to the Wagner bill in the House? The Wagner bill is more pernicious than SESTA, and Rep. Wagner may be less receptive to compromises than the SESTA sponsors. The most likely options include:

* Rep. Wagner acquiesces to the Senate-approved SESTA, in which case the bill probably will pass the House rapidly.

* Rep. Wagner doubles down on her bill, which passes the House without conforming to SESTA. I’m not sure what happens then–if that will require a conference between the House and Senate or if other deals will be struck.

* Rep. Wagner doubles down on her bill but can’t make progress quickly enough, leaving the bill unpassed this session. Given that Rep. Wagner has 170 cosponsors in the House, this seems unlikely, but who knows.

If a bill is going to pass both chambers, SESTA is superior to the Wagner bill in its current form. So to me the biggest risk is the second option, where there remains a chance that the Wagner bill’s extra perniciousness ends up getting into the final draft.

More SESTA-Related Posts:

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