Dear Senators Portman & Blumenthal: What Should Blogs Do If SESTA Passes?

from the how-do-we-stay-on-the-right-side-of-the-law dept

So we’ve spent some time talking about why SESTA is such a bad bill even in its updated form (which fixes just a tiny sliver of the overall problems). And we may have some more soon about other problems with the language in the bill, but for now I want to make this even more real and ask Congress — and SESTA authors Senators Rob Portman and Richard Blumenthal, specifically, what they think bloggers, independent journalists, citizen journalists and anyone who hosts comments on their site should do if SESTA passes. Because all these sites are platforms protected by Section 230 of the CEA and, as SESTA is written, parts of it are so unclear that it could introduce significant legal liability, or at least uncertainty over whether or not they’re liable for the comments readers post on their sites and articles.

One thing we’ve heard over and over again from SESTA supporters is that the bill won’t have any impact on most sites because (they claim) “no one accidentally facilitates sex trafficking.” We wonder how they can be so certain. Ignoring, for the moment, that all sorts of important speech can be branded as speech related to trafficking, even for speech we all agree is problematic, it is not clear what the Congressional authors of the bill, and SESTA’s staunchest advocates, think smaller sites, like ours, should do to ensure that none of that content ever sneaks through and ends up in our comment sections. To use us as an example: we’re a small site, with a small team and limited resources. But we do allow comments on our posts, because we think community is an important aspect of a modern media site — and we get a lot of comments, to the point that it is literally impossible for us to review every single comment on the site. We also, obviously, get a fair number of spam comments, and have put in place spam filters. The spam filters are pretty good, but they will make a few Type I and Type II errors at times (i.e., accidentally holding a legit comment and accidentally letting through a spam comment).

The number of comments (spam and not spam) vary day by day, but it’s not uncommon to deal with on the order of 2000 comments or so (both spam and not spam) on a daily basis. We cannot read through all of them. And at least some of the spam may be advertising questionable and illegal behavior — potentially sex trafficking. Here’s an example that I found in our spam filter. The title of the spam reads “hot chinese women” but the text of the comment links to a site advertising “columbian girls” and while we’ve redacted part of the URL (we don’t want to promote them at all), as you can see, part of the domain involves “love.” Most of the text is nonsense garbage which is just designed to get through a spam filter (thankfully, in this case, it did not work):

Is this comment “facilitating sex trafficking” under federal law? I certainly hope not. But it’s possible that the links in that spam go to a site that facilitates sex trafficking. And, while this comment was caught in our spam filter, what if it had gotten through? Do we now have “knowledge” that Techdirt, via its open comments, “assisted, supported, or facilitated” a violation of sex trafficking law? I would still argue that we don’t, because we had no knowledge of that particular comment, and if we had seen it sneak through the spam filters, we clearly would have flagged it as spam and taken it off the site. But… the standard in the bill is not at all clear. Even worse: could this very post — in which I’m explaining to Congress the uncertainty created by its own bill — be used as evidence of me showing “knowledge” that sometimes spammers try to post these kinds of comments on our site? Is that enough to pass the hurdle in the bill to suggest I now have the requisite “knowledge” to potentially be both civilly and criminally liable? That would be a patently ridiculous outcome, but that, alone, represents some of the key problems of the bill as written.

Indeed, my concerns about merely asking Congress what sites like ours should do, demonstrate the automatic chilling effect in the bill. The chilling effect is happening now, before the bill is even passed.

I would hope that most rational people would say that we should not be liable just because some spammer is possibly clever enough to get a comment like this around our spam filters. But… as the bill is worded now, I am left wondering how do I avoid such liability? There are no clear safe harbors that tell me what steps to take to avoid such liability. Are we required to use a spam filter? What if none are perfect enough? Is the only way I can protect Techdirt be to kill the comment section and all the benefits a comment section enables? Can Senators Rob Portman and Richard Blumenthal tell me what to do? After all, during the hearing on this bill, when Blumenthal was told about its effect on smaller, independent sites, he insisted that such sites were “outliers” who “should be prosecuted.” Is that what Blumenthal really thinks? A blog with a spam filter that is not 100% accurate should be prosecuted? If that’s not what he thinks, then shouldn’t the law he helped write make it clear for bloggers like me that merely allowing comments should not expose us to liability? Do small sites like Techdirt need to get pre-approval by the Internet Association who endorsed the bill to know if we’d be ok? Or, more likely, should sites like ours now need to go spend hundreds or thousands of dollars on lawyers to get an opinion that won’t actually stop any potential lawsuit?

I am sure that many supporters of SESTA will argue that this is an extreme scenario. They will say, “Oh, come on, no one is going to go after you for a spam comment.” I hope that’s true! But, under the language of the bill, it’s unclear. And that’s the problem. We’ve certainly seen (repeatedly) that when someone wants to attack a site, they will use whatever laws they can find on the books. To make matters worse, SESTA also allows state Attorneys General to bring both civil and criminal suits. We’ve certainly upset some state Attorneys General in the past. Would a vindictive one use this opportunity to stifle Techdirt and shut it down? I, again, hope not, but we’re living in an age where apparently it’s considered okay for politicians to use their bully pulpits to threaten legal action against opponents, including the press.

There may be ways to improve SESTA — but many of the ideas on the table also have potential serious negative consequences. We should be engaged in a careful discussion about those consequences and the costs and benefits of various approaches. There needs to be a clear explanation for how sites like ours can avoid these risks. But that’s not what’s happening. Small sites don’t have the resources of a Facebook or a Google. They can’t just spend thousands of dollars on lawyers to figure out how to navigate this new vague language, which wouldn’t even guarantee that they won’t get in trouble just because, say, a spam filter isn’t good enough.

SESTA isn’t just a bad bill because it won’t do anything to stop trafficking (the trafficking will continue). It leaves smaller sites, such as ours, completely in the lurch over what our own level of risk is. So, a plea to Congress — and Senators Portman and Blumenthal specifically: if you are going to move forward on this bill at least fix it so that sites like ours know what to do to stay on the right side of the law.

Filed Under: , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Dear Senators Portman & Blumenthal: What Should Blogs Do If SESTA Passes?”

Subscribe: RSS Leave a comment
51 Comments
That One Guy (profile) says:

Re: Re:

From a previous article:

Goldman: There’s no doubt that the legitimate players will do everything they can to not only work with the law enforcement and other advocates to address sex trafficking and will do more than they even do today. At the same time, the industry is not just the big players. There is a large number of smaller players who don’t have the same kind of infrastructure. And for them they have to make the choice: can I afford to do the work that you’re hoping they will do.

Blumenthal: And I believe that those outliers — and they are outliers — will be successfully prosecuted, civilly and criminally under this law.

Tl;dr version: If you don’t happen to have the resources of a giant company then screw you, you deserve what you get.

Machin Shin says:

The dangerous thing they don’t take into account is that they keep passing things like this and beating up on people trying to follow the law.

I don’t know about everyone else but I for one try to follow the rules/laws. There is this tipping point though where when you keep changing the rules and pushing me more and more… I finally just say “Fuck it, you want to treat me like a bad guy I might as well just go be a bad guy”

Ninja (profile) says:

Re: Re:

I’m not going to be the bad guy but I will say that my respect for the laws have been severely crippled. When there are different courts whether you have tons of money or not, laws are selectively enforced or are bought by economic powers (ie: copyright) then why should I respect them? It’s not that I or the people who are thinking alike are bad persons that want to disrespect the laws. It’s the laws that are disrespecting us all, including those who are blind to the problems.

Anonymous Coward says:

Is this comment "facilitating sex trafficking" under federal law? I certainly hope not.

That would not matter is some DA decided to go after you, and put you out of business by bankrupting you through the legal costs of defending yourself. Even worse, they could possibly get a sheriff to seize your assets as the proceeds of crime.

Daydream says:

Maybe we should start working on reclaiming the word 'law'.

Let’s stop and think for a moment.
Some laws are really important. Things like prohibitions on murder and violence, things like traffic rules, the establishment of the judiciary and due process. Their purpose is to create standards, regulations and procedures to preserve peoples well being, protect their basic human rights and restore them if they’re violated.

SESTA is not a law like that. Nor is asset forfeiture, or all the collecting done by the NSA, or 90% of copyright bulltwang.
These ‘laws’ might pretend to be for the general population’s benefit (stop sex trafficking stop terrorists stop drugs stop piracy baww), but with a bit of reporting it’s fairly obvious that their real purpose is propaganda, ‘justifying’ their actions to the public so the greedy rich can censor competitors and dissidents, rob innocents, gather weapons and de-facto enslave people, for the sake of accumulating a little more wealth and power.

I’m getting to think that maybe it’s time we stopped giving this propaganda legitimacy by calling it ‘law’, even if it is passed by Congress. We need to change our thinking, stop conflating this rubbish with the real rules meant to protect our rights.

Any suggestions? Any good words that roughly translate to ‘rules the tyrant makes up’?

Groaker (profile) says:

Re: Maybe we should start working on reclaiming the word 'law'.

One good example of Daydream’s thesis is the abuse of section 213 of the Patriot Act. SESTRA will undoubtedly follow the along the same track:

“The Patriot Act continues to wreak its havoc on civil liberties. Section 213 was included in the Patriot Act over the protests of privacy advocates and granted law enforcement the power to conduct a search while delaying notice to the suspect of the search. Known as a “sneak and peek” warrant, law enforcement was adamant Section 213 was needed to protect against terrorism. But the latest government report detailing the numbers of “sneak and peek” warrants reveals that out of a total of over 11,000 sneak and peek requests, only 51 were used for terrorism. Yet again, terrorism concerns appear to be trampling our civil liberties.”

https://www.eff.org/deeplinks/2014/10/peekaboo-i-see-you-government-uses-authority-meant-terrorism-other-uses?page=367

Anonymous Coward says:

Re: Quickest way to kill the bill

The quickest way to kill the law is to leave some "special comments" on the senator’s web pages after the law goes into effect.

Nope. In any corrupted system, the corrupt are always exempt from wrongdoing. You on the other hand will be punished 100% of the time for the exact same wrongdoing.

I.e. "Do as I say, not as I do."

Anonymous Coward says:

Pull up stakes and leave the United States, taking the entire business, all it servers, and all its assets outside the United States.

If you do not live in America, and you no part of your business in America, and no assets or servers in America, SESTA will not apply to your website.

If I owned property in Silicon Valley, I would sell now because you can expect a lot of companies to leave America if SESTA passes.

If, for example, Google packs and and leaves the United Staets, including YouTube and Google Video, Google would no longer to obey American laws.

Anonymous Coward says:

Re: Re:

If, for example, Google packs and and leaves the United Staets, including YouTube and Google Video, Google would no longer to obey American laws.

I can see why you wouldn’t know this, since Masnick carefully avoided pointing it out in his previous article about the “Internet Association” supporting SESTA.. but Google is a member of the “Internet Association”, and supports SESTA.

They won’t be leaving, but they will be sitting back and enjoying watching many smaller potential competitors vanish as a result of SESTA.

That One Guy (profile) says:

Re: Re:

Define ‘untrusted’. Should sites like TD now have to keep a list of ‘trusted’ sites that people are allowed to link to? What happens if someone with an axe to grind decides that what they consider a ‘good’ site and and what TD considers a trusted site is widely different, such that clearly TD isn’t really trying?

That’s the point. The law is stupid and dangerous, and one of the main reasons for this is how vague it is, such that there is no clear ‘Do X and you’re safe’, ‘Do Y and you’re not’.

MyNameHere (profile) says:

Re: Re: Re:

Think about it. Just allow the usual list of sites you might link to (any site that Techdirt has linked a story from, as an example) and everything else goes to moderation.

“The law is stupid and dangerous, and one of the main reasons for this is how vague it is, such that there is no clear ‘Do X and you’re safe’, ‘Do Y and you’re not’.”

I don’t know, I find it pretty clear. Don’t tolerate posters linking to unknown sites, pay attention to your site, and don’t be afraid to moderate. Otherwise, everything seems normal.

Oh, yeah, I forgot, don’t open a section that’s call “happy endings massages and nude hour long dating services, adults only”. That likely will keep you in the clear!

That One Guy (profile) says:

Re: Re: Re: Re:

Think about it. Just allow the usual list of sites you might link to (any site that Techdirt has linked a story from, as an example) and everything else goes to moderation.

I’ll just copy/past this part of the very comment you’re responding to shall I?

‘What happens if someone with an axe to grind decides that what they consider a ‘good’ site and and what TD considers a trusted site is widely different, such that clearly TD isn’t really trying?’

Beyond the blanket decision of ‘links = bad’ which would require TD(and every other site with user submitted content) to throw together a list of ‘good’ sites, something which would be a riot to deal with I’m sure, that idea also assumes that the only way to include a link is to list it directly, something I imagine anyone who’s run across more than a few spam bots can attest isn’t the case.

I don’t know, I find it pretty clear. Don’t tolerate posters linking to unknown sites, pay attention to your site, and don’t be afraid to moderate. Otherwise, everything seems normal.

Awesome, if it’s ‘pretty clear’ then you should have no problem pointing to the part of the bill that lays that ‘simple’ path to avoiding liability out.

While you’re at it perhaps you can point to the text laying out what sites have to do such that they are liable, in particular the exact definitions of things like ‘knowingly’ and ‘facilitate’. Thing’s only five pages, and since it’s ‘pretty clear’ should take you a few minutes at most to find and provide this information.

MyNameHere (profile) says:

Re: Re: Re:2 Re:

“‘What happens if someone with an axe to grind decides that what they consider a ‘good’ site and and what TD considers a trusted site is widely different, such that clearly TD isn’t really trying?'”

Your question is nonsense.

First off, the idea of trusted sites is basically to allow people to post links (without moderation) to sites like say EFF or Wikipedia – or say perhaps MSM sites. It’s not anything more than that. It’s just to help keep your moderation queue down a bit. Not many comments here come with links in them (maybe 1 in 100) so whitelisting a few would solve the problem.

Second, I am not getting your angle here. Someone with an axe to grind? First off, they would have to show the other site wasn’t good (ie, was doing something illegal) and then would have to show that Techdirt facilitated that site getting traffic. So you are pretty far down the rabbit hole already.

“that idea also assumes that the only way to include a link is to list it directly”

If you don’t want your link in moderation, don’t use URL shorteners. Direct link and avoid problems. If you use a very short white list, pretty much everything else ends up in moderation when it has a link it in. Problem resolved.

It’s especially relevant for Techdirt, which already sticks those posts in moderation – it’s not like they would need to do anything other than what they already do.

“While you’re at it perhaps you can point to the text laying out what sites have to do such that they are liable, in particular the exact definitions of things like ‘knowingly’ and ‘facilitate’.”

We all know those two words are legally slippery. However, we also know that in the case of Youtube. the standard for it is pretty high.

Does Techdirt have adult listings? Does Techdirt generally allow spam postings? Does Techdirt moderate their site? The answers are NO, YES, and YES – which shows a site which isn’t knowingly aiding prostitution and isn’t making it easy for them to get traffic (ie, facilitating).

It’s pretty basic, actually. I know Mike is in a tizzy against anything that even pecks away a small corner of the overbroad section 230 protections, but seriously, the points are way, way, way, over the top and bear no relation to any application of such a law.

Ninja (profile) says:

Re: Re: Re:3 Re:

Ah, how simple and rosy the world is to you. Sometimes I kind of envy you and then I remember you’ll be in for a rude awakening at some point if everything goes how you preach. Anyway.

Your comment can be summarized as: fuck the small players, let everybody bear the costs of added moderation efforts, be them economic, social or psychological. So, yeah, it is pretty simple.

As for the axe, don’t play dumb. I’ll replicate what was said in another comment:

"The Patriot Act continues to wreak its havoc on civil liberties. Section 213 was included in the Patriot Act over the protests of privacy advocates and granted law enforcement the power to conduct a search while delaying notice to the suspect of the search. Known as a “sneak and peek” warrant, law enforcement was adamant Section 213 was needed to protect against terrorism. But the latest government report detailing the numbers of “sneak and peek” warrants reveals that out of a total of over 11,000 sneak and peek requests, only 51 were used for terrorism. Yet again, terrorism concerns appear to be trampling our civil liberties."

There are loopholes that WILL be abused. I don’t expect your simple, idiotic mind to grasp this but it’s always worth pointing out.

Anonymous Coward says:

All bloggers are DOOMED! DOOMED, I tells ya!

You and other bloggers don’t / can’t / won’t monitor your site? Really?

I doubt you’re at any risk or will have to do more than at present.

You run this FUD for bloggers while ignoring reports that Harvey Weinstein hired Mossad agents (like CIA, there are no “ex-” agents, except dead) to spy on and silence his accusers: now there’s CHILLING EFFECT.

orbitalinsertion (profile) says:

Re: All bloggers are DOOMED! DOOMED, I tells ya!

I notice you didn’t mention the ten million other things that happen every day that techdirt failed to repeat on the site. __What is your agenda for not mentioning them?__

Don’t/can’t/won’t monitor is also completely beside the point. It’s damned if you do, damned if you don’t, when someone chooses you for application of the law. Given your apparent concern about Weinstein, you might want to keep an eye on the sorts of places that report the things you like, for when someone decides something they said, or a commenter said, which “facilitates sex trafficking”, or someone purposely plants items there which do.

The law is completely unnecessary, and very poorly worded even for one of those extraneous “we’re doing something” laws.

Uriel-238 (profile) says:

Prosecutory Discretion

Popehat explained this long ago in his thing about Prosecutory Discretion which is the courthouse term for selective enforcement.

Our officials like laws that can be used to target anyone (or a large swath of people). That way they can disappear anyone who is being a pest.

That is the point of the CFAA. That is the point of the Espiionage Act. And that is the point of such an ambiguously wide net like SESTA.

Of course, what will also happen is journalists and legitimate netizens are going to turn to denizens of the darknet (anarchists, liberals and terrorists was it?) to find out how to stay anonymous and to confirm identity only with those you want to know.

The alleged enemies of the state are going to become our friends. At least our allies against the tyrannical police state.

MyNameHere (profile) says:

What Should Blogs Do If SESTA Passes?

Not much really.

WordPress sites can basically take anything with a link in it and have it automatically go to moderation (there is a setting for that). Site owners could modify their themes such that any comment poster doesn’t get a link off their name (a typical spamming technique).

Honestly, you don’t have to do anything you were not doing already. Your Speciality Camera Lens Blog isn’t promoting prostitution or anything like that in and of itself, and normal moderation takes care of the rest – just like you would do today.

The only sites that have anything to fear are sites who allow comments like the example on their sites.

The truth is, SESTA will likely make some of you actually consider what you allow on your sites. It may change things from “wide open, have at’ter boys” to at least lightly moderated and slightly restricted.

Techdirt already does this, which makes the arm waving about SESTA seem a little over the top. Post too many links in a post, use whatever they have flagged as “TOR”, or a litany of other petty offenses and boom, your post goes to “moderation”. That means it never shows up on the site until Leigh gets off his duff to press the okay button, which is usually quite a bit later.

Have you ever seen a prostitution ad on Techdirt?

NEXT!

MyNameHere (profile) says:

Re: Re: What Should Blogs Do If SESTA Passes?

Ignorance is believing that this law is intended for or could easily be applied to all sites without any regard for the content of the law.

The law isn’t broadly worded. It uses two very slippery words, both of which we know generally the courts set a pretty high standard for (see Youtube case). Knowingly is simple. If you are selling ads to prostitutes, and you know it, and you publish them anyway… ding.

if you leave those ads up even knowing that prostitution is illegal, and if you offer help to write the ads to avoid legal problems (avoiding specific words that get them arrested) then you are facilitating.

If your site does neither of those things, then the law won’t apply to you at all.

How hard is that?

Anonymous Coward says:

Re: Re: Re: What Should Blogs Do If SESTA Passes?

It uses two very slippery words, both of which we know generally the courts set a pretty high standard for (see Youtube case).

Which allow those so inclined, like ambitious DA’s, to notch up wins by forcing companies to go bankrupt trying to defend themselves, or simply folding to avoid those legal bills.

MyNameHere (profile) says:

Re: Re: Re:2 What Should Blogs Do If SESTA Passes?

Ambitious DAs will use RICO and dog walking statutes to get you if they feel the desire. That’s not an issue.

All of the arm waving is about something that sites generally don’t do: they don’t run ads for sex workers, and don’t allow links to escort / porn sites.

Mike is really waving his arms on this one – clearly he got the Wyden talking points memo!

Ninja (profile) says:

Re: Re: Re: What Should Blogs Do If SESTA Passes?

“Ignorance is believing that this law is intended for or could easily be applied to all sites without any regard for the content of the law.”

Thanks for proving my point.

Go ahead, keep focusing on small, specific points. Ignore the myriad of lawsuits showing that “knowingly” is very far from simple.

It must be wonderful to live in ignorance 🙂

GEMont (profile) says:

Right ends rights, legally

I think you’re missing the point altogether.

Chilling free speech is precisely one of the main purposes of this “bill”.

Fascists hate free speech nearly as much as they hate consumer protection legislation.

As the billionaire’s business regime gains more and more control over US law, you’ll be seeing a whole lot more of this sort of “for the children” criminalization of free speech, both on the web and in daily life.

Welcome to the new world.

Order.

The billionaires and I are both certain that American frogs will do absolutely nothing to prevent this boiling water process, because Americans do not believe this sort of thing can happen here, and no amount of evidence can defeat belief.

C’est la vie eh.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...