As Expected Senate Overwhelmingly Passes Unconstitutional SESTA Bill, Putting Lives In Danger

from the total-failure dept

This was not unexpected, but earlier today the Senate easily passed SESTA/FOSTA (the same version the House passed a few weeks ago) by a 97 to 2 vote — with only Senators Ron Wyden and Rand Paul voting against it. We’ve explained in great detail why the bill is bad. We’ve explained in great detail why the bill won’t stop sex trafficking and will actually put sex workers’ lives in more danger, while also stomping on free speech and the open internet at the same time (which some see as a feature rather than a bug). The Senate declined to put any fixes in place.

Senator Wyden, who had originally offered up an amendment that would have fixed at least one big problem with the bill (clarifying that doing any moderation doesn’t subject you to liability for other types of content) pulled the amendment right before the vote, noting that there had been a significant, if dishonest, lobbying effort to kill those amendments, meaning it had no chance. He did note that because of the many problems of the bill, he fully expects that these issues will be revisited shortly.

As for the many problems of the bill… well, they are legion, starting with the fact that multiple parts of the bill appear to be unconstitutional. That’s most obvious in the “ex post facto” clause that applies the new criminal laws to activities in the past, which is just blatantly unconstitutional. There are some other serious questions about other parts of the bill, including concerns about it violating the First Amendment as well. It seems likely that the law will be challenged in court soon enough.

In the meantime, though, the damage here is real. The clearest delineation of the outright harm this bill will cause can be seen in a Twitter thread from a lawyer who represents victims of sex trafficking, who tweeted last night just how much damage this will do. It’s a long Twitter thread, but well worth reading. Among other things, she notes that sites like Backpage were actually really useful for finding victims of sex trafficking and in helping them get out of dangerous situations. She talks about how her own clients would disappear, and the only way she could get back in touch with them to help them was often through these platforms. And all that will be gone, meaning that more people will be in danger and it will be that much harder for advocates and law enforcement to help them. She similarly notes that many of the groups supporting SESTA “haven’t gotten their hands dirty in the field” and don’t really understand what’s happening.

That’s true on the internet side as well. Mike Godwin highlights the history before CDA 230 was law and the kinds of problems that come about when you make platforms liable for the speech of their users.

In Cubby, a federal judge suggested (in a closely reasoned opinion) that the proper First Amendment model was the bookstore ? bookstores, under American law, are a constitutionally protected space for hosting other people?s expression. But that case was misinterpreted by a later decision (Stratton Oakmont, Inc. v. Prodigy Services Co., 1995), so lawyers and policy advocates pushed to include platform protections in the Telecommunications Act of 1996 that amounted to a statutory equivalent of the Cubby precedent. Those protections, in Section 230, allowed platform providers to engage in certain kinds of editorial intervention and selection without becoming transformed by their actions into ?publishers? of users? content (and thus legally liable for what users say).

In short, we at EFF wanted platform providers to be free to create humane digital spaces without necessarily acquiring legal liability for everything their users said and did, and with no legal compulsion to invade users? privacy. We argued from the very beginning, about the need for service providers to be just, to support human rights even when they didn?t have to and to provide space and platforms for open creativity. The rules we worked to put into place later gave full bloom to the World Wide Web, to new communities on platforms like Facebook and Twitter and to collaborative collective enterprises like Wikipedia and open-source software.

Meanwhile the Senators who passed the bill will completely forget about all of this by next week, other than to pat themselves on the back and include 3 seconds in their next campaign ad about how they “took on big tech to stop sex trafficking.” And, of course, people in Hollywood are laughing at how they pulled a fast one on the internet, and are already strategizing their next attacks on both CDA 230 and DMCA 512 (expect it soon).

None of those celebrating realize how much damage they’ve actually caused. They think they’ve “won” when they really did astounding levels of damage to both victims of sex trafficking and free speech in the same effort.

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Comments on “As Expected Senate Overwhelmingly Passes Unconstitutional SESTA Bill, Putting Lives In Danger”

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OGquaker says:

Re: Sex as an unsavory moral morsel

Margaret Prescod’s 110K watt radio show today illuminated the criminal position that Women must assume in this society; Breton-Woods DID NOT monetize any of the product of Women’s work; children, home health care, growing food, shopping and cooking et al, and the new Gross DOMESTIC Product only measures product that crosses national borders, relegating Women to ‘NoHumanInvolved’.

Disclaimer; i rented the front bedroom in this house to Margaret Prescod for 15 years as her office. She has testified before the UN in NY, and at worldwide Women’s conferences.

That One Guy (profile) says:

Handy list

So there’s 97 people who are in favor of screwing over the internet, including victims of sex trafficking, so long as it gets them a bit of PR and/or makes hollywood happy.

There’s selling out, and then there’s doing so in a way that makes it crystal clear where your loyalties lie and how low you’re willing to sink for your own gains. These individuals, and the ones in the house that voted in favor have more than managed the latter.

Anonymous Coward says:

Re: Handy list

There’s selling out, and then there’s doing so in a way that makes it crystal clear where your loyalties lie and how low you’re willing to sink for your own gains. These individuals, and the ones in the house that voted in favor have more than managed the latter.

Make sure it translates into lost votes, and a PR nightmare for them. That’s the only way to get their attention.

This shouldn’t be too hard to do, given that the voting blocks are changing, and the internet generations are increasing in number. Let it be known to all politicians that if you <omitted> with the internet, you’ll pay the price for it come election day.

GEmont (profile) says:

Re: Re: Handy list

“…pay the price for it come election day.”

This sort of thing never fails to amuse.

These billionaires; who you say will “pay the price”, have just turned the internet into a brick and yet you folks still believe they would never, never, tamper with the American Election system.

The T. Rump Gang has to be laughing its collective ass off, reading your naive patriotic drivel.

“What me worry!”
“Elections will save us all on Voting Day!”

No wonder Fascism is so successful.

Anonymous Coward says:

Re: You think it's good Rand Paul is with you in the 2 percent?

I disagree. Although Trump is probably guilty of many things, I have a hard time believing that he’d be stupid enough to actually ask Russian government agents to hack servers and commit other illegal acts in order to tamper with the election — which is what the Mueller Probe is supposed to be specifically and exclusively investigating.

Having found zero evidence after more than a year of investigating, it’s starting to follow the path of Bill Clinton’s Whitewater probe, which turned into an open-ended witch hunt that lasted eight years and only ended when Clinton finally left office.

nasch (profile) says:

Re: Re: You think it's good Rand Paul is with you in the 2 percent?

I have a hard time believing that he’d be stupid enough to actually ask Russian government agents to hack servers and commit other illegal acts in order to tamper with the election

That’s exactly what he did, and publicly. He exhorted Russian hackers to hack into Clinton’s servers, and obtain and release emails in order to damage her campaign.

Having found zero evidence after more than a year of investigating

How do you have access to the details of the Mueller investigation?

Anonymous Coward says:

Re: Re: You think it's good Rand Paul is with you in the 2 percent?

“I have a hard time believing that he’d be stupid enough to actually ask Russian government agents to hack servers and commit other illegal acts in order to tamper with the election”

Many of us saw him do exactly that on national television, where were you?

Anonymous Coward says:

Re: it's not unconstitutional, won't put lives in danger

Wow, that sure explained everything. Your post is the internet equivalent of plugging your ears and saying “No it isn’t.” Provide some kind of support for your argument or don’t even bother posting. There is a reason why he has a popular website and you do not. Hint, it isn’t your stellar fresh breath.

That One Guy (profile) says:

Re: feeding the trolls

You know an article has really hit a nerve when the usual gang/individual really ramps up the personal attacks and insults.

What would make it extra funny would be if they think that anyone is fooled by the multiple posts by ‘multiple’ people, rather than seeing it for what it is, just more deranged ranting by TD’s most dedicated troll/stalker.

discordian_eris (profile) says:

"None of those celebrating realize how much damage they’ve actually caused."

BS. Many of them know exactly what the repercussions will be. Some of them will consider it, not a feature, but the feature of this bill. Some are sociopathic and don’t care. Some simply don’t care because their vote shows they are tough on crime and were ‘helping’ the children. The rest just voted they way the were paid to.

Daydream says:

You know…I think the politicians do this, because they’re afraid.

They know, though they won’t be heard saying it, that their America is corrupt. Police can kill and rob with impunity, corporations can file frivolous suits to seize everything you own, banks rig things so that everything you earn goes to them.
The only way to be safe in America is to be rich and famous, so you can hire lawyers, get your side out, make yourself big and dangerous to touch. Like a pufferfish.

So, these politicians don’t govern responsibly, they act in the interests of their own survival. They take money and job offers under the table from corporations, do things to make the banks and police and other ‘big and dangerous’ see them as friends, all in the name of not ending up a wage slave or a victim of police brutality.

But, it’s the laws they pass, the blind-eyes they turn, that enables this twisted, corrupt, only-the-rich-are-free country. If they did their jobs right, they could retire to safe jobs, knowing they can trust the police and banks and seek remedies when they’re wronged. So why are they building their own trap?
I can only assume a variation of the prisoner’s dilemma; if they stand up and say ‘no’, but no-one stands with them, they’ll gain nothing and only make themselves a target. Better to just keep their heads down. Every single senator might want to slap down police brutality and do things right, but at the same time each one thinks the other senators are in it for the money and will never support ‘doing right’, so they follow the crowd to avoid being picked out as a ‘troublemaker’.

Anonymous Coward says:

Re: Re: Re:

Does anyone know how the other senators and politicians regard Ron Wyden?

Like is he just ignored or laughed off as a “special” senator? Do people respect him and his opinions?

From what I have seen, it seems when Wyden states something or asks a question it is because there is a good reason and others should pay attention to the details.

Yet on the latest round of issues it’s like the other politicians just ignore him.

GEMont (profile) says:

The rapid decline of the American Dream - waking up is a bitch.

“…damage to both victims of sex trafficking and free speech…”

Under a fascist government, victims of sex trafficking are an exploitable resource and free speech, well, nothing is free under fascism and speech among the herd, being dangerous to those who profit from secrecy and deception, always needs to be stifled as much as possible.

This was a fully successful move by the conquerors of America, and should solidify their stranglehold quite a bit in the near future as well as weaken the US system of legal public protection to allow escalating exploitation in numerous other fields going forward.

With the onset of Eternal War, the Sex Industry will flourish, funneling many more millions of dollars into the offshore accounts of almost everyone currently in T. Rump’s administration, and with the end of the open internet as we know it, these same billionaires have insured that public dissent can be quashed quickly and any who expose the truth can be legally and preemptively punished, or quietly “disappeared”.

All in all, the Fascist Team is batting a perfect average and the American Public is still totally preoccupied fighting among themselves over who got the best toys first.

Apparently Fascism never fails, because nobody believes it is really happening till its far too late.

Clock is ticking kids.

Anonymous Coward says:

If one alternate history scenario had come to pass, enforcing this would have been impossible.

If the United Governates of Alaska had happened, part of the Bay Area would be in the UGA, and the other in the USA.

Tech companies on the UGA side of the border would not be not subject to United States laws.

SOPA would have also been unenforceable, if it had passed, and the UGA were in existence.

With the North Bay in the UGA, wireless ISPs would have sprung up providing service to USA users within range. ISPs and cell phone companies in the United Governates of Alaska would have been not subject to SOPA, even if customers were on the U.S. side of the border using cellphone and wireless ISPs services on the Alaskan side of the border

Anonymous Coward says:

Which happens first?

Now I’m pondering which will happen first with it – that it will get struck down as unconstitutional or them once big places become completely unmoderated by anything other than DMCA takedowns and users while removing their ability to scapegoat anyone.

If they passed it sooner it would have given Zuckerberg and others the perfect defense. “Geeze I would have loved to have done something about the meddling but attempting to do so would open us to legal liability so nothing we can do without a court order or DMCA. The risks are too much to reasonably take.”

Backpage and craigslist would have it really good then for every crusading DA trying to ‘do something’. “We would love to believe me, but it would open us up to hard time if we tried to help.”

Perhaps wishful thinking but that would be the hilarious end to such a stupid ill-thought out bill and poetic justice for those who want to ‘do something’ without first considering their actions.

Anonymous Coward says:

It could have been worse, and it could get worse.

Some years ago, a number of attornies general in the USA, wanted to erase CDA 230 completely repealed, to make ISPs liable as well.

And one of those 47 attornies general could well be the next President. Kamala Harris could well beat Donald Trump, in 2020. She is one of the few Democrats that could beat Trump, some estimates have her getting 286 electorate votes.

After Kamala Harris takes the oath of office in 2021, it could get worse.

ISP blocking, if states mandate it after CDA 230 gets completely repealed when Kamala Harris is President, could be circumvented using VPNs.

When this happens, in 2021, offshore VPN companies will see a LOT of customers.

At least the Republicans did not decided to make ISPs liable in this one.

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