SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)

drudge sirenThe SESTA and FOSTA “debates” have been repeatedly marred by inaccurate claims. As one of countless examples, recall Prof. Leary’s testimony to Congress that FOSTA “leaves Section 230(c), the Good Samaritan immunity section, untouched.” What??? Of course FOSTA amends Section 230(c)–THAT’S THE WHOLE POINT–so this an obviously and literally false claim.

More apropos to today’s post, recall Sen. Portman’s claim that SESTA:

does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.

In August, I explained how this statement was also clearly false, yet Sen. Portman kept repeating it even after my debunking. Eventually, the SESTA Manager’s Amendment explicitly carved out Section 230(c)(2)(A) from some of its provisions, finally moving closer to what Sen. Portman had claimed all along.

But let’s revisit Sen. Portman’s insistence that SESTA “protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.” Over and over, SESTA and FOSTA opponents have pointed out that this assertion is untrue. Instead, SESTA would create a Moderator’s Dilemma, where SESTA’s liability for “knowledge” about content will force well-meaning Internet services to either: (1) moderate content perfectly and accept liability for what’s missed, or (2) not moderate content at all, turning into “anything-goes” zones where anti-social content can flourish.

To effectuate Sen. Portman’s claim that sites that “proactively block and screen for offensive material” won’t be harmed by SESTA, I proposed an amendment to say exactly that: efforts to undertake socially desirable content filtering won’t be counted against a service for whatever they fail to remove. If everyone agrees that’s the goal, Congress should say so. Here’s the key text of the amendment:

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove, material it considers objectionable shall not be considered in determining its liability for any material that it has not removed or restricted access to.

As I discussed on Friday, Sen. Wyden has sought to introduce this amendment on the Senate floor.

SESTA’s sponsors are pushing back against the amendment with, unfortunately, more misunderstandings of what Section 230 says and how it works. On Friday, Sen. Blumenthal’s office circulated the following email (emphasis added):

Senators Blumenthal, McCaskill and the other bipartisan sponsors of SESTA oppose the Wyden amendments. These amendments threaten to derail the bill and they would make it even more difficult than current law to hold websites that sexually traffic minors like accountable….The safe harbor amendment would provide websites like with even stronger legal protections than they enjoy today. It also has the potential to disrupt other areas of the law, such as copyright protections. This “bad Samaritan” amendment is not a clarification or a protection for good actors–it is an additional tool to protect traffickers and illegal conduct online.

There are at least three obvious problems with this email. First, the amendment would indeed protect good actors because it would eliminate the Moderator’s Dilemma. The authors of this email still don’t understand, or have decided to ignore, the Moderator’s Dilemma. Second, the proposed amendment would not help Backpage–at all. The Senate Investigative Committee report highlighted voluminous facts about Backpage’s knowledge, so I can’t see how Backpage’s purported filtering would come up in any SESTA/FOSTA enforcement.

Third, the email indicates that the amendment “has the potential to disrupt other areas of the law, such as copyright protections.” This is where the screen freezes, the record scratches, and the narrator says in a deadpan, “No, it wouldn’t.” Section 230(e)(2) expressly carves out “intellectual property” claims–including copyright–from Section 230’s coverage. Anyone with even a basic understanding of Section 230 knows this. Yet, the sponsors, on the eve of a decisive vote with monumental stakes for Section 230, appear to be demonstrating a fundamental misunderstanding of what Section 230 says and does. That is very, very confidence-rattling.

Worse, the email has it precisely backwards. The amendment would HELP, not DISRUPT, copyright protection efforts. If services stuck in the Moderator’s Dilemma decide to turn off proactive moderation efforts, that will include turning off copyright filtering. In other words, SESTA/FOSTA may have the unwanted consequence of encouraging Internet services to do LESS copyright filtering. (This is just one of many examples of my claim that SESTA/FOSTA may counterproductively increase anti-social content). The amendment would fix that by not holding their copyright filtering efforts against Internet services for sex trafficking or prostitution promotion purposes, i.e., by filtering for copyright, the Internet services won’t fear that a court will ask why their filters missed promotions for sex trafficking or prostitution. So if Congress wants to avoid “disrupting” efforts to combat online copyright infringement, the amendment is essential.

At the same time, the copyright tangent is unexpectedly revealing. Since the bills were introduced, there has been speculation about whether the copyright industry has embraced SESTA/FOSTA as a proxy battle for their war against the Internet giants. This out-of-left-field reference to copyright stokes those concerns.

Finally, a quick sampling of some opponents of SESTA-FOSTA (what I call the “Worst of Both Worlds FOSTA”) in its current form:

* the Department of Justice

* the Wall Street Journal

* the Los Angeles Times

* the House Liberty Caucus

More SESTA/FOSTA-Related Posts:

Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
What’s New With SESTA/FOSTA (January 17, 2018 edition)
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