What’s New With SESTA/FOSTA (January 17, 2018 edition)

drudge sirenIt’s been over a month since I last blogged about SESTA, FOSTA, and Congress’ efforts to address Section 230 and sex trafficking. So it seems like a good time to do an update on recent developments. The holidays were quiet, but things have roared back with the start of the new year. Here’s a quick roundup of recent SESTA/FOSTA developments.

* SESTA now has 66 co-sponsors out of 100 senators. The primary things slowing down SESTA from passing the Senate are Sen. Wyden’s hold and Sen. McConnell’s decision on when to schedule a vote. FOSTA has 173 co-sponsors out of 435 Congressmembers.

* The Senate Commerce Committee released a committee report about SESTA. As typical for documents like this, the report largely just parrots the statutory language and provides a redline against the current statute. Still, a few passages stood out:

– The CBO estimates that the bill would not have a material financial impact because “the legislation would probably affect only a small number of cases.” This, of course, implicates the questions about SESTA that I’ve been asking all along: who does it actually regulate, how many cases are we debating about, and are we sure those cases aren’t covered under existing law?

– The report says:

The Committee notes that this Act would not abrogate section 230(c)(2)(A). This provision would ensure that ICSs cannot be held liable on account of actions taken in good faith to restrict access to objectionable material. With this provision preserved, an ICS should not be concerned that it will face liability for knowingly assisting, supporting, or facilitating sex trafficking based on its actions to restrict access to material that violates the Federal sex trafficking statute. As section 230(c)(2)(A) provides, an ICS would not have their good faith efforts to restrict access to objectionable content used against them.

This is a false assurance. I wrote a whole blog post explaining why SESTA’s attempted accommodation of Section 230(c)(2)(A) was misarchitected. Here’s the key passage:

SESTA enables online services to be sued or prosecuted for sex trafficking promotions that third parties publish through their service. Online services will be reluctant to undertake content moderation efforts if they face liability for any sex trafficking promotions that slip through, i.e., if they miss a promotion, review a promotion but make a mistake, or take too long to find or remove a promotion.

The Manager’s Amendment preserves Section 230(c)(2)’s protection for Removal decisions. However, this won’t encourage Good Samaritan efforts because: (1) online services don’t fear being sued or prosecuted for what they remove (and such risks usually can be ameliorated by the online service’s contract with the third party users-publishers); (2) Section 230(c)(2)’s “good faith” requirement undercuts the safe harbor’s availability, and it substantially increases defense costs because judges may enable wide-ranging discovery into defendants’ “good faith”; and (3) online services may abandon their content moderation efforts entirely rather than risk being charged with knowledge of content they didn’t catch.

Instead, SESTA effectively exposes online services to liability only for third party content that they publish online or don’t remove quickly enough. This means online services principally need immunity for their Publication decisions, not their Removal decisions. Section 230(c)(1)—not (c)(2)—provides the applicable immunity for content Publication. Thus, by curtailing Section 230(c)(1), SESTA removes the primary protection that online services rely upon when doing Good Samaritan content moderation against sex trafficking promotions (and all other objectionable content).

So don’t be fooled by the report language trying to rehabilitate Section 230(c)(2)(A). It’s probably meaningless in practice.

– The report gives an example about Section 230(c)(2)(A): “if a website screens advertisements in an effort to remove objectionable material, but then merely edits illegal advertisements to make them more difficult for law enforcement to identify, or knowingly assists, supports, or facilitates sex trafficking, then even an ICS’s efforts to remove objectionable content are no bar to liability. Section 230(c)(2)(A) was never intended to, and does not, pose a barrier to liability on these facts.” I doubt many of us are sympathetic to the website operator in circumstances where a website knows an ad is for sex trafficking and intentionally publishes it anyway but with obscuring redactions, and Section 230(c)(2)(A) wouldn’t be available in this circumstance anyway because of the website’s lack of “good faith.” However, the report glosses over exactly what it means to “edit” advertisements because editing can take many forms, so what constitutes “editing” is a crucial question faced by legitimate sites that automatically manipulate third party ads. Furthermore, the example reinforces my overall critique about Section 230(c)(2)(A)’s likely irrelevancy; the website faces liability for content it publishes, so it’s the publication decision (not removal decisions) that will remain chilled.

– The report mentions the statute’s retroactivity and saving clauses but doesn’t provide any insight into them. Guest blogger Alex Levy had some important concerns about the retroactivity provisions.

– The report also discusses giving state AGs civil enforcement authority but doesn’t provide any further clarity on why this was added, or why it was needed.

* There is a deepening divide between SESTA and FOSTA supporters. The “I am Jane Doe” crowd has lined up behind SESTA and views substitute FOSTA with hostility. The tech industry and public interest advocates have either lined up behind, or will acquiesce to, substitute FOSTA. I don’t have a clear vision of which group will prevail or how the SESTA v. FOSTA battle will resolve.

* Both sides claim that law enforcement supports their bill. Despite the pro-SESTA crowd’s hyperbole, some parts of the law enforcement community prefer FOSTA over SESTA. Some links on this topic:

– R Street: A Prosecutor’s Case for FOSTA: “While SESTA writes a new, potentially more expansive definition into the existing sex-trafficking law, FOSTA uses clear language to give prosecutors a new way to catch websites enabling sex traffickers.”

– Carl Szabo, Stopping Sex Traffickers Online and on our Streets.

– Fraternal Order of Police: Substitute FOSTA “will prove effective at allowing law enforcement to investigate and prosecute individuals and businesses that advertise or otherwise facilitate sex trafficking.”

National Association of AUSAs: Substitute FOSTA “provides an effective means for combatting internet websites that host sex trafficking advertisements.”

* The SESTA advocates aren’t above hardball tactics to push the legislation forward. See Mike Masnick’s post, Senator Portman Promises To Pass Bills To Harm Tech Companies If They Won’t Support SESTA.

* As for my personal views, I continue to believe that neither bill would productively solve any problems with online sex trafficking; and that each bill has uncertain and potentially deleterious consequences for other socially vital aspects of the Internet. However, if I had to pick one, FOSTA is more likely to help victims and less likely to do harm to the Internet.

* When I first saw the initial draft of Rep. Wagner’s bill, I was troubled that the supporters apparently had zero clue how Internet companies moderate content and how the bill would counterproductively undermine those efforts. However, the Internet companies are partially to blame for this lack of knowledge because much of the details about their content moderation operations are hush-hush or publicly revealed selectively. In response, back in April 2017, I hatched a plan to get the Internet companies to tell the world about how they moderate content so that regulators might better understand how policy initiatives could help–or hurt–those mechanisms.

Ten months after I formulated that plan, the resulting conference is almost here! Content Moderation and Removal at Scale, Feb. 2, at SCU. With such a long lag time between formulating the plan and the actual event, I feared the conference would take place after Congress had already taken irreversible action. Fortunately, it looks like the conference will take place before Congress takes any final action on SESTA or FOSTA. Unfortunately, I doubt that the useful facts elicited at this conference will actually help improve this round of policy-making.

Note: the conference is sold out. If you still hope to attend, please get onto our waitlist ASAP. We’ll be working hard to clear the waitlist and get as many people into the conference as possible.

* After the First Circuit’s important Doe v. Backpage ruling, the plaintiffs refiled the case. Yesterday, the judge deferred Backpage’s motion to dismiss, giving the parties 60 days to conduct discovery on this allegation: “on information and belief, Backpage . . . redrafted the advertisement [submitted to Backpage regarding Jane Doe No. 3] to suggest Jane Doe No. 3 was an adult.”

More SESTA/FOSTA-Related Posts:

New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
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