Floor Remarks: CDA 230 and SESTA

M. President, I stand on the Senate floor today in firm agreement with my colleagues that the Congress must do more to combat the scourge of sex trafficking. It is a profound and tragic failure of American institutions that trafficking has not only continued to plague this nation — it has increased.

Federal law enforcement has failed to root out and prosecute traffickers, even when they’re operating in plain sight. So, too, have internet companies failed when it comes to sex traffickers operating on their platforms.

I fear that the legislation before the Senate will be another failure. I fear it will do more to take down ads than take down traffickers. I fear it will send the bad guys beyond the grasp of law enforcement to the shadowy corners of the dark web, where everyday search engines don’t go, but where criminals find safe haven for their monstrous acts.

In some ways, this debate mirrors another the Congress went through slightly more than two decades ago. Back then, not many Senators knew a whole lot about the internet. In 1995, this body had the laudable goal of protecting children from accessing pornography online. But the result of those good intentions was, unfortunately, a bad policy called the Communications Decency Act of 1996.

Behind that policy was a fundamental misunderstanding of both the architecture of the internet and the modern application of the First Amendment. Because the law didn’t just go after those targeting pornography to minors. It took speech that was legal in the real world and made it illegal online. And it produced a legal trickster’s paradise, creating new ways to sue over speech and adversely affecting everyone from medical providers, artists, writers of literature and more.

As should happen with poorly written policy, all but one part of the Communications Decency Act was soon ruled unconstitutional and struck down by the Supreme Court.

Section 230

The one piece of the law left standing was CDA Section 230, which I co-authored with former Congressman Chris Cox. What Section 230 was all about was laying out the legal rules of the road for the web.

There were innovative new businesses sprouting up all over, and novel forms of communication and media connecting and informing people in new ways. But it was clear that the quickest way to strangle that revolution in its infancy was for those new companies to be held legally liable for every piece of content users posted on their platforms.

When Congressman Cox and I wrote Section 230, it was impossible to foresee all the effects it would have. But here’s what we did know:

First, I wanted new small businesses to start out focusing on hiring engineers, developers, and designers rather than worrying about needing a team of lawyers.
 
 Second, I wanted to make sure that internet companies could moderate their websites without getting clobbered by lawsuits. I think everybody can agree that’s a better scenario than the alternative, which means websites hiding their heads in the sand out of fear of being weighed down with liability.
 
 Third, I wanted to guarantee that bad actors would still be subject to federal law. Whether the criminals were operating on a street corner or online wasn’t going to make a difference.
 
 Fourth, I wanted to protect the internet from the whims of state and local legislators. Congress has authority to regulate interstate commerce, and nothing is more “interstate” than the internet. This was vitally necessary policy for the network effect to take hold. It may not be in the interest of the publicity-seeking DA or local politician for the federal government to run the show in this area, but there’s no question that it IS in the best interest of the American people.

For the most part, this framework worked better than I ever imagined it would. As a result of Section 230, the small, gutsy entrepreneur with a big dream working out of his garage has a real shot to succeed. Marginalized groups of vulnerable Americans have a better opportunity than ever to make their voices heard. Small nonprofits have the ability to take their causes nationwide. And our economy has grown by trillions of dollars by virtue of the fact that the government got this policy right from the beginning — just as internet-based commerce was preparing to take flight.

One scholar, David Post, even wrote that, quote, “It is impossible to imagine what the internet ecosystem would look like today without it,” Post said.

My wife saw that and said, “well, even a blind squirrel find a nut every once in a while.”

But joking aside, to illustrate why the protection that comes from Section 230 is so important, let’s consider what would happen without it.

Imagine starting a forum site dedicated to the discussion of knitting. It’s a topic that seems like it should be as drama-free as they come, but maybe someone goes on the site and shares a pattern they didn’t have the right to share. Suddenly your website is facing a copyright infringement lawsuit. Maybe the knitting versus crocheting debate gets overheated, and users start trading barbs. Suddenly you have people slinging defamation suits at your little forum host. Then, someone is injured by automatic needle threader they read about in a comment thread. Suddenly you’re a co-defendant in a liability suit, all because you didn’t have the protection of Section 230.

Now imagine how hard it would be to launch a platform that’s open to discussion of ANY topic when even the simplest, most narrowly-focused website on the internet can become a magnet for lawsuits. There aren’t enough lawyers in the world, thank God, to handle all that litigation.

So in the absence of Section 230, the internet as we know it would shrivel. Only those platforms run by people with deep pockets and a deeper bench of lawyers would make it.

Furthermore, Section 230 isn’t just about hobbies and commerce. It protects the coordination of free speech, particularly among vulnerable groups of Americans. That’s the reason why organizations like the libertarian CATO Institute, the progressive Human Rights Campaign and the ACLU voiced serious concerns about the legislation before the Senate. You don’t often see those three groups lined up side by side. But here they are, and it’s because without the protections of Section 230, civic organizations exercising their right to free speech could be cowed by their more powerful political opponents.

For this example, let’s imagine a non-profit organizing a campaign in support of a local ballot measure. They use social media to build awareness and promote upcoming rallies and events with online discussion boards. But without Section 230, powerful interests opposed to their work could swoop in and effectively silence that non-profit with an onslaught of litigation. Hostile individuals could pose as supporters and make comments on the nonprofit’s website that would expose the group to liability suits. The chilling effect on free speech could be enormous.

I’d ask unanimous consent to enter into the record the letter from the ACLU opposing FOSTA-SESTA.

Tech companies failed to do their part.

The fact is, CDA 230 was never about protecting incumbents. I’ve spent my career taking on the powerful established interests. And when I wrote this policy, I never envisioned a Facebook, but I did hope it would give the little guy’s startup a chance to grow into something big. And bottom line, it worked.

But now, despite the fact that CDA Section 230 undergirds the framework of the internet as we know it today, it is on the verge of collapse. That is largely because the big internet companies have utterly failed to live up to the responsibility they were handed two decades ago. Let me explain what I mean.

For these companies, Section 230 is a sword and shield. It offers protection from liability, but it also gives companies the power — and the responsibility — to foster the sort of internet Americans want to be part of.

In years of hiding behind their shields, the companies have left their swords to rust. The companies have become bloated, uninterested in the larger good, and feckless. And when they have taken positive steps — as Wikimedia has, for example — their practices haven’t been adopted by their peers.

Let’s look at one case study reported last week by the tech news website Motherboard. In 2012, the website Reddit, on which individuals form communities where they share and discuss content, cracked down users posting non-consensual photos of women — so called “creepshots.” But the website Tumblr did not sufficiently police the same inappropriate content, so these reprehensible communities simply relocated from Reddit to Tumblr, and the “creepshot” problem lived on. That’s how easy it was for the creators of vile content to move from one platform to another.

Supreme Court justice Potter Stewart famously observed that he could not define hardcore pornography, but he knew it when he saw it. Congressman Cox and I may not have known exactly what content we intended for sites to be able to take down when we wrote Section 230, but I know it when I see it. Far too often, the big internet companies refuse to know it even when they see it.

Huge amounts of what populates social media networks each day is every bit as destructive and socially corrosive, if not more so, than the pornography at issue in that famed Supreme Court case. It’s the creepshots, the sex trafficking ads, the conspiracy videos about school shootings and anti-vax nonsense that endangers the public health, and more.

Tech giants cry that no one could track the millions of posts or videos or tweets that cross their services every hour. But that’s not what anybody’s asking them to do! Section 230 means they are not required to fact-check or scrub every video, post, or tweet. But there have been far too many alarming examples of algorithms driving vile, hateful, or conspiratorial content to the top of the sites millions of people click onto every day — companies seeming to aid in the spread of this content as a direct function of their business models.

It’s perfectly reasonable to expect some greater responsibility from these gigantic, multibillion-dollar corporations that were able to thrive as a result of protection they were granted by public policy. That was the idea behind Section 230. That doesn’t carry any obligation to suppress free speech. It’s about being a responsible member of the community.

Sites like Facebook, Youtube, and Tumblr constitute the entire internet for millions of users who click through the same group of sites every day. They have an undeniable role to play in fostering a civil environment. Their failure to do so could very well mean the internet looks very different ten years from now. Not just for those who spread hateful and conspiracy-driven filth, but for decent people who use the internet to learn, find entertainment and keep in touch with friends and loved ones.

There was a time when the biggest internet companies had mottos like “don’t be evil.” Perhaps it’s time for them to aspire to a more modest motto, “don’t spread evil.”

But with all that said, it’s not just the internet companies who have failed to properly respond to these challenges in the internet era. When it comes to sex trafficking, which is the underlying issue the Senate is working to address today, our country has failed victims at almost every level.

For example, the Justice Department could have — and absolutely should have — investigated the website Backpage years ago for its role in promoting sex trafficking, but it fell down on the job.

Backpage’s activities were no secret, so in the absence of action by DOJ, a Senate subcommittee, led by Senators Portman and McCaskill, conducted its own investigation and subpoenaed key documents. Among those documents were emails that appeared to show that Backpage was actively working with sex traffickers to create advertisements. That meant Backpage was not due protection by Section 230. In fact, a lawsuit in Boston was given the go-ahead based on that exact finding. And it has been widely reported that the Justice Department now has its own investigation underway, although it’s coming far too late. This should have happened years ago, and it is only one example of where the government’s efforts have fallen short.

But now, following on the twin failures of federal law enforcement and the big internet companies, the Congress is responding to a serious challenge with flawed policy changes.

In my view, the legislation before the Senate will prove to be ineffective, it will have harmful unintended consequences, and it could be ruled unconstitutional.

Colleagues, I take a backseat to nobody when it comes to policies that bring sex traffickers to justice and help the victims of their hideous crimes. I have authored laws to support victims and provide ongoing funding paid for by those convicted of crimes against children, and I’ve authored laws to improve the child welfare system to help prevent children from becoming victims in the first place. I will put my record up against any member of this Congress when it comes to actually passing laws to tackle this urgent problem.

But the bill before us today will not stop sex trafficking. It will not prevent young people from becoming victims. And I want to lay out exactly why I believe that will be the case.

First, as I mentioned earlier, the Department of Justice takes the view that a provision of this bill is unconstitutional. And in my judgement, that’s another issue the Congress ought to address before sending a bill to the president’s desk. But instead, this body is hell-bent on forcing this bill through as-is.

Second, the legislation before the Senate will make it HARDER, not easier, to root out and prosecute sex traffickers.

In part, according to the Department of Justice, that’s because this legislation could have the effect of, quote, “effectively creating additional elements that prosecutors must prove at trial.” I’d say you’re heading in the wrong direction with legislation that would RAISE the burden of proof in cases against sex traffickers.

DOJ wrote a letter to Chairman Goodlatte of the House Judiciary Committee laying out those concerns, and I ask unanimous consent to enter that letter into the record.

But that’s not the only problem when it comes to enforcing the law.

Colleagues, the bill before the Senate is focused on taking down online advertisements, not on catching criminals or protecting victims. Taking down ads doesn’t mean the pimps and predators start following the rules. When the ads come down, the criminals scurry to the darker corners of society. Instead of stopping trafficking, this bill will push it to dark alleys, the dark web, and overseas.

Career, federal law enforcement officers — the expert investigators — are the people who know how to root out these traffickers under these circumstances. They’ve got expertise that state and local law enforcers don’t have. So by handing new authorities to the states, this bill is moving in the wrong direction.

So in my view, the right approach is to make sure these career, expert federal law enforcement officers and investigators have the resources they need to get the job done. One of the amendments I’m offering today provides $20 million a year for five years to the Attorney General to spend in coordination with the FBI and Homeland Security to investigate and prosecute sites that criminally facilitate sex trafficking.

Bottom line, if Senators want law enforcement to do a better job of stopping the traffickers like Backpage, my amendment gives the right people the resources they need to bring these monsters to justice.

Finally, the bill before the Senate will punch a hole in the legal framework of the open internet.

I don’t often quote the editorial board of the Wall Street Journal here on the Senate floor, but I will shout anybody out when they’re right. The Journal recently summed up one impact of this bill: it will create what they called an online “lawsuit bonanza”. They predict any website that “should have known” criminal activity took place on its platform will be a target for lawsuits. Any message board or chatroom where users interact with each other can become a new target for litigation.

Without specific protections for companies that make good-faith efforts to find and stop criminal behavior on their platforms, this legislation could actually punish companies that TRY to moderate their users’ posts, but let something slip through. Just by looking for illegal material, a website could setting the table to be sued over anything they don’t find.

The second amendment I’m offering would clarify this issue — what’s known as the Good Samaritan clause. If companies decide as a result of a poorly written bill that their only safe option is to put their blinders on and ignore vile, illicit content, that’s bad for everybody except the criminals.,,, I want to eliminate that uncertainty, and I want companies to know without a doubt that they have the right to moderate the content users post.

So in technical language, what this amendment says is that neither the presence nor the absence of an attempt to moderate content online can, by itself, trigger liability.

But the Journal raised more than just the Good Samaritan issue. Just as bad, by passing this exception to Section 230, courts might make it hard to prosecute websites for OTHER crimes. Back to what the Journal wrote:

“If Congress provides a carve-out for sex-trafficking, courts might conclude that Section 230 was intended to be applied narrowly for other crimes and make it harder to prosecute websites [that are] complicit.”

Ultimately, I fear this bill will set off a chain reaction that leads Congress to cut away more categories of behavior from Section 230, and dismantle the legal framework that’s given the United States the position it holds as a tech-economy superpower.

Tech pulling up ladder

And so if this legislation that chips away at CDA Section 230 is such a bad idea for the internet, people following this debate might ask why some of the biggest internet companies like Facebook support it.

It’s because it will pull up the ladder in the tech world, leaving the established giants alone at the top. As I’ve said, Section 230 from the beginning was all about giving the little guy the best possible chance to succeed.

Chipping away at that law will curtail the culture of innovation and bare-knuckled competition that have been the defining characteristics of the internet for more than two decades.

For companies that have reached the top of the internet economy, staying there has proven to be hard. Regulators once feared that Microsoft would dominate the way Americans interacted with the internet, but then a little company called Google appeared on the scene. Facebook, a half-trillion dollar company, got out of its infancy by displacing a competitor called MySpace.

These established companies would do anything to avoid being displaced themselves. Facebook will do anything not to become another MySpace.

Today, Facebook is under attack for allowing the Russians to interfere with our elections. Facebook is under attack for giving hate groups a platform to spread their bile. Facebook is under attack for giving conspiracy theorists an algorithmically promoted platform to lure in the unsuspecting. Facebook is under attack for collecting, monetizing, and storing far more personal information than their users ever suspected.

While it’s a great tool for connecting with friends and family, a small team of well-caffeinated coders could duplicate and improve upon its functionality without difficulty and without all of Facebook’s baggage.

So, how does Facebook stay on top? One way is to acquire the competition. My oldest daughter tells me that no one under 30 uses Facebook. But this new generation certainly uses Instagram — and they might not even know that it’s part of the same mega-company — bought out by Facebook. But you can’t buy everyone, so then you resort to the oldest trick in the book — make it harder for new companies to get into the game. You don’t have to compete if there’s no competition. And that’s where this legislation come in.

If internet startups are no longer protected by Section 230 and they’re exposed to the threat of near-constant litigation, it’ll be a lot tougher for them to secure injections of funding and grow. Fewer VCs will be willing to risk their deep pockets if their early-round investments are swallowed up by legal fees instead of paying for coders.

But in the eyes of the giant, established corporations, a world without Section 230 is less of a threat. Fifty million dollars a year in liability settlements is a drop in the bucket for them. It’s the cost of doing business. And it’s an added benefit if that cost is too high for new companies to get into the game.

The big tech companies are trying to hold onto their position at the top with all their might, and they’re not above using the government to do it. That’s been true of many industries before them, and it should come as no surprise when it happens again in tech. The Facebooks of the world will tell you how important Section 230 was to the innovation of the last 20 years. But there are technology companies like IBM, who haven’t done much innovating for the last 20 years, that want to see 230 done away with entirely, for trumped up reasons. For business, it’s not about right or wrong, it’s all about dollars and cents.

So, what does the future hold? As the Wall Street Journal observed — a lawsuit bonanza is in the works. It’s ironic that a Republican Congress and Republican President are going to create the biggest new source of suits for trial attorneys in decades.

For the technology business, it means bigger is better. Not better for innovation, certainly not better for consumers, but better for the profits of those lucky enough to have reached the top of the mountain first.

It’s safe to expect a slew of proposed new exceptions to Section 230. When someone is injured, they and their families want recourse, but our legal system is woefully bad at delivering justice. It is unfortunately far better a facilitating deals, often unjust deals, because numbers are far easier than doing right. This failure means that a line of injured parties will be petitioning to seek the sort of recompense only their Congressman can provide.

For America — well — Section 230 is very likely the reason we have a multitude of Billion-dollar internet employers and the Europeans have none. Where countries aren’t hiding behind the trade barrier of the Great Firewall or other artificial market forces, American innovation has won out over the rest of the world.

The United States is not prepared to exist without Section 230 protections. As scholars have pointed out, it’s a unique law in the world.

It’s a case where the United States got the temperature right from the beginning, leading to our dominance in tech. But if the U.S. puts cracks into the foundations of Section 230, I’d wager there will be plenty of other countries that will change their laws to siphon away our companies and take the jobs they create.

Whether Senators know it or not, we are in a fight for the Internet every day. Our Internet companies are not engaged in this fight, their only interest is currying favor with the nations where they wish to do business. The Chinese, Iranians, Russians, even our European allies, are maneuvering to impose a more repressive view of speech and expression on individuals around the world, and unfortunately they have plenty of allies here at home. Free speech has never been free, and it is often not popular. It was wrested from the grip of a dominating state and must be defended by every generation lest the state reclaim control. Today we take a real step backward, backward, and down a path we will regret.

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