The road to hell is paved with good intentions, and tools like SESTA are used to place the stones.
The Stop Enabling Sex Traffickers Act, a bill introduced to the US House of Representatives in August by Rob Portman (R-Ohio), is intended to make life more difficult for internet services that knowingly profit from sex trafficking that may be organized over their platforms.
What it is more likely to do is embolden sex traffickers and put any business that allows users to post information on their websites at massive legal risk – for no good reason.
What does SESTA actually do?
SESTA would carve out new exceptions to Section 230 of the Communications Decency Act of 1996. The Communications Decency Act was intended to regulate pornography on the internet. The restrictions it placed on online communications were struck down in 1997 as unconstitutional, due to a lawsuit from the American Civil Liberties Union.
Section 230 survived. It protects internet companies from civil and state-level criminal liability for content posted by users of those websites. For example, YouTube isn’t liable for the content of videos, as it is not legally considered the “publisher” of those videos. The Tribune is responsible for our stories but not comments on the stories. Section 230 does not protect websites from federal criminal liability and never has.
SESTA would remove Section 230 protections for advertisements or other content promoting sex trafficking.
Why is this bill being considered?
SESTA is primarily a response to recent events involving Backpage, a website similar to Craigslist. Some people have used Backpage to advertise illegal services like prostitution.
The difference between Backpage and most other websites is that there is some reason to believe, based on reporting from the Washington Post as well as Federal investigations, that Backpage was involved in the creation of these illegal advertisements, recruited prostitutes and even manipulated its search functions to hide the ads from law enforcement.
If the allegations are true, Backpage does not have Section 230 protections for these advertisements because it was actually creating the content itself.
So what’s the problem?
If Backpage is already being prosecuted, why is a new law needed for going after websites that do what Backpage allegedly did. The federal government can already prosecute Backpage and Section 230 already doesn’t apply to its advertisements if Backpage employees made them, not a user.
Critics of SESTA, including the ACLU, believe this will prevent businesses from policing their websites because simply finding that sex trafficking content exists, even if it is immediately taken down and reported to law enforcement, could constitute “knowledge.”
This jeopardizes what is known as the “Good Samaritan” clause of Section 230, which protects companies even if they intervene in content posted by users and remove objectionable or illegal content on their sites. They are not “publishers” just because they allow some content and disallow other content.
SESTA, as written, does not offer any way out of liability, any way to do the right thing under the law. As soon as knowledge exists, liability exists. This will have to be argued in the courts for decades, just like safe harbors in the Digital Millennium Copyright Act, a 2000 law which similarly protects websites from liability for third-party content that infringes copyrights. Court cases arguing the definitions of language in the DMCA continue to this day.
It seems that the only real option open to companies is pre-moderation of everything – nothing can be posted unless it is screened.
This will result in false positives, where legal content is flagged. Even content designed to educate about and help combat sex trafficking might be flagged, as has happened with attempts to combat Islamic extremism. It was discovered that YouTube deleted legitimate videos documenting war crimes in Syria in an effort to delete pro-ISIS videos.
This will also result in clever prostitution ads slipping through the cracks. Criminals will learn how to game the system so their ads don’t get flagged. Every time the bad guys pull ahead in the arms race that follows and their content gets on the site, companies trying to do the right thing will become open to more prosecution and more lawsuits.
As things currently stand under the law, companies that delete and report illegal content to law enforcement are doing the right thing and are not punished for doing so. Businesses that facilitate illegal content are doing the wrong thing and are open to prosecution and civil liability, as it should be for anyone who participates in this heinous crime.
SESTA will put all businesses, whether they do the right thing or the wrong thing, on equal footing under the law, and that’s the wrong thing for congress to do to fight sex trafficking.