SESTA and the Future of the Internet
Why has a bill designed to combat online sex trafficking sparked a serious debate about the future of the Internet?
The bill is called the Stop Enabling Sex Traffickers Act (S. 1693), or SESTA for short, and it’s racing to a vote. Introduced by Senator Rob Portman (R-OH), SESTA has already picked up bipartisan support from over two dozen cosponsors, and it covers territory similar to an earlier bill introduced in the House, Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865).
So, what could be so wrong with a bill that sounds like it’s attacking all the right problems and gaining momentum?
That’s exactly why we’re writing this post — to explain how a bill with the right intentions could have disastrous consequences, and to show just how many different voices are concerned about the profound unintended consequences this bill could have.
Who Should Care?
Some commentators have framed this as a fight between Congress and big tech companies. Some have made misleading claims that civil liberties and Internet watchdog groups are just overreacting. But the reality is this debate is much broader. In fact, it’s hard to name a single online community or service that won’t be affected by SESTA.
More voices than we can reasonably fit in a single post have spoken out about the flaws of this bill, including many groups who don’t ordinarily see eye-to-eye. We’ve heard from civil society organizations and civil liberties organizations, proponents of Internet freedom, legal and policy experts, and technologists and startups.
There’s no shortage of suggestions about how to make this bill better, but there is one thing that’s missing: recognition from Congress that this bill affects us all.
Section 230: The “Good Samaritan” Provision
Since 1996, content on the Internet has been regulated by a foundational provision in the Communications Decency Act, known as Section 230 or the “Good Samaritan” provision.
Section 230 established a clear and universal standard for accountability for Internet platforms and the content on their platforms. That means any platform — from a personal blog to Wikipedia — cannot face lawsuits if someone shares a post or comment that someone else doesn’t like. But Section 230 also means that platforms need to have mechanisms in place to allow “Good Samaritans” to report dangerous, offensive, or illegal content.
Without Section 230, online platforms are exposed to massive liability for what users post on their websites. Think about it: Should Twitter be held responsible for one person’s tweet? OR should Twitter be encouraged to moderate content and report bad actors?
The Good Samaritan provision is the cornerstone of the Internet — the provision that has made the Internet a place for innovation, creativity, and expression.
Why is the “Good Samaritan” provision under attack?
SESTA goes after Section 230 because the bill’s authors claim that it’s necessary to change this framework in order to hold bad actors accountable. There’s just one massive problem with this argument: legal experts have repeatedly pointed out that this is just not true. Nothing in the law today prevents the Department of Justice from prosecuting websites designed to facilitate trafficking.
In 2015, President Obama signed The SAVE Act, a law that made it a felony to host online ads for trafficking and commercial sexual exploitation. To date, zero prosecutions have been brought under The SAVE ACT, which might realistically prompt Congress to ask the Department of Justice why it hasn’t prosecuted more sex traffickers and online bad actors under existing laws. However, the DOJ also hasn’t asked for new laws or suggested that they are needed to prosecute bad actors.
Recently, the website Backpage.com settled a number of civil suits from trafficking survivors and their families. If the DOJ prosecutes Backpage.com for any crimes it has committed, Section 230 will not protect it — just as it won’t protect any criminal activity.
The call for new legislation without an examination of enforcement and prosecution of existing laws is premature at best. At worst, it’s forcing a false choice between protecting victims of sex trafficking and good samaritans on the Internet, when the reality is that Section 230 exists because good samaritans exist — and they’re not on the side of the bad actors.
Unintended Consequences
The Internet is a huge ecosystem of big and small actors who would all be impacted by SESTA and any legislation that threatens Section 230. Both of the bills that have been elevated in Congress are written broadly and could result in unintended consequences that could take many years to work themselves out.
In its current form, SESTA would:
- Create an unclear standard for content moderation, forcing online platforms to over-censor user generated content or risk prosecution. In fact, Section 230 encourages proactive content moderation. SESTA could undermine its effectiveness and make it even harder to work with law enforcement to help victims.
- Open Internet content up to a patchwork of 50 different state and local laws that are impossible to navigate. Internet companies are already bound by federal anti-trafficking laws (like the SAVE Act). SESTA would change the current standard to a tangled web of 50 state-by-state laws, which would be impossible for small actors to navigate.
As a coalition of civil society groups said in a letter to Congress:
“Without these protections, online platforms as small as a personal blog or as big as Wikipedia would face a flood of frivolous lawsuits and potentially devastating filtering costs.”
But the cost to innovation and expression online is nothing compared to some of the questions raised by trafficking experts who have pointed out how the Internet has shined a light on trafficking in ways that have never before been possible. The problem with rushing to pass laws to address one of the most widespread and heinous criminal acts in across the globe is that we’re still understanding how modern communications channels can work both to help and to hurt law enforcement efforts. Law professor and trafficking expert Alexandra F. Levy spells out the problem:
Figuring out how to navigate this terrain is hard work, as all true advocacy is. SESTA, on the other hand, is a blunt approach. It might be satisfying to shut down a space in which ugly things are revealed. But doing so would be a mistake, especially when it’s a space that often serves as a lifeline between victims and recovery.
So, what should Congress do?
Members of Congress should listen and be thoughtful about new legislation.
They should listen to law enforcement. They should listen to victims and advocates. They should listen to technology experts. And they should listen to everyone who would be impacted by broad-sweeping legislation aimed at the foundation of the Internet.
To put it simply: Congress should listen to voters.
To stop sex trafficking, we need the full power of the Internet. But the Internet isn’t just a handful of powerful tech companies and government regulators — it’s you and me and everyone we know.
Tell Congress that we all want to stop sex trafficking, and we all should be part of the solution.
This has been a collaboration featuring content from Demand Progress, Electronic Frontier Foundation, FreedomWorks, R Street Institute, TechFreedom, Center for Democracy and Technology, and Engine.
