Legal Issues

by Elliot Harmon


Filed Under:
filters, sesta, startups

Companies:
google



Google Will Survive SESTA. Your Startup Might Not.

from the this-isn't-about-google dept

There was a shocking moment in this week’s Senate Commerce Committee hearing on the Stop Enabling Sex Traffickers Act (SESTA). Prof. Eric Goldman had just pointed out that members of Congress should consider how the bill might affect hundreds of small Internet startups, not just giant companies like Google and Facebook. Will every startup have the resources to police its users’ activity with the level of scrutiny that the new law would demand of them? “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?”

Goldman was right: the greatest innovations in Internet services don’t come from Google and Facebook; they come from small, fast-moving startups. SESTA would necessitate a huge investment in staff to filter users’ activity as a company’s user base grows, something that most startups in their early stages simply can’t afford. That would severely hamper anyone’s ability to launch a competitor to the big Internet players—giving users a lot less choice.

Sen. Richard Blumenthal’s stunning response: “I believe that those outliers—and they are outliers—will be successfully prosecuted, civilly and criminally under this law.”

Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet.

Blumenthal is one of 30 cosponsors—and one of the loudest champions—of SESTA, a bill that would threaten online speech by forcing web platforms to police their members’ messages more stringently than ever before. Normally, SESTA’s proponents vastly understate the impact that the bill would have on online communities. But in that unusual moment of candor, Sen. Blumenthal seemed to lay bare his opinions about Internet startups—he thinks of them as unimportant outliers and would prefer that the new law put them out of business.

Let’s make something clear: Google will survive SESTA. Much of the SESTA fight’s media coverage has portrayed it as a battle between Google and Congress, which sadly misses the point. Large Internet companies may have the legal budgets to survive the massive increase in litigation and liability that SESTA would bring. They probably also have the budgets to implement a mix of automated filters and staff censors to comply with the law. Small startups are a different story.

Indeed, lawmakers should ask themselves whether SESTA would unintentionally reinforce large incumbent companies’ advantages. Without the strong protections that allowed today’s large Internet players to rise to prominence, startups would have a strong disincentive to grow. As soon as your user base grows beyond what your staff can directly police, your company becomes a huge liability.

But ultimately, the biggest casualty of SESTA won’t be Google or startups; it will be the people pushed offline.

Many of SESTA’s supporters suggest that it would be easy for web platforms of all sizes to implement automated filtering technologies they can trust to separate legitimate voices from criminal ones. But it’s impossible to do that with anywhere near 100% accuracy. Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet. As EFF Executive Director Cindy Cohn put it, “Again and again, when platforms clamp down on their users’ speech, marginalized voices are the first to disappear.”

The sad irony of SESTA is that while its supporters claim that it will fight sex trafficking, trafficking victims are likely to be among the first people it would silence. And that silence could be deadly. According to Freedom Network USA, the largest network of anti-trafficking advocate organizations in the country (PDF), “Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims.” Congress should think long and hard before passing a bill that would incentivize web platforms to silence those victims.

Internet startups would take the much greater hit from SESTA than large Internet firms would, but ultimately, those most impacted would be users themselves. As online platforms ratcheted up their patrolling of their users’ speech, some voices would begin to disappear from the Internet. Tragically, some of those voices belong to the people most in need of the safety of online communities.

Republished from EFF's Deeplinks blog


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  • identicon
    Anonymous Coward, 25 Sep 2017 @ 12:09pm

    correction

    Elliot I'm sorry to say that it appears that TD has been getting the name of the bill wrong for a while now: it's name is "Start Enabling Sex Trafficking Act" (alternately "Stop Enabling Sufficient Trade Arrangements")

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 25 Sep 2017 @ 12:10pm

    "Sen. Richard Blumenthal's stunning[???] response"

    What's "stunning" about egregious cases? -- OH, I know! You're stunned that corporate criminals might actually BE prosecuted. Gotcha.

    Anyhoo, this "little guys will lose" argument is put out any time looks like laws might be enforced. -- And the solution is to BREAK UP monopolies to put every corporation on more equal basis.

    Before that, there isn't any reason society MUST allow "platforms" to exist in first place. It may be bad idea all round. Certainly is for sites like The Pirate Bay having criminality as basis. We don't allow physical sites to be KNOWN criminal bases, so how is "teh internets" different?

    This academic weenie is just trying to limit the range of debate with "only the little guys will be hurt" so that the giant corporations go on without ANY responsibility.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2017 @ 12:16pm

      Re: "Sen. Richard Blumenthal's stunning[???] response"

      You have not been following the proposals. Real criminal behavior by companies can already be prosecuted, but what this bill does is make it a criminal offense not to spot and remove and advert for a criminal activity posted by a user, and which appears without any moderation.

      Also, anybody advertising illegal sexual services also has to be contactable so that they can provide the service, and are more exposed to arrest if they use the Internet to advertise than if they use other means.

      reply to this | link to this | view in chronology ]

    • identicon
      Michael, 25 Sep 2017 @ 12:29pm

      Re: "Sen. Richard Blumenthal's stunning[???] response"

      "We don't allow physical sites to be KNOWN criminal bases"

      Yes we do. Take, for instance, US highways. People are constantly breaking the law on those things by going faster than the speed limit. Are we holding the department of transportation responsible for the actions of those drivers?

      Or let's try something much closer - what about a prison? If an inmate sexually assaults another inmate, is the prison administration found criminally liable?

      Of course not. In the real world, we hold the criminals responsible. It baffles me why anyone making the argument for SESTA would not already be calling for laws that "prevent" criminals from using the phone system, highway system, and utilities by holding the phone company, DOT, and utility company responsible for not policing the use of their services. Or, well, I suppose it is possible that the SESTA supporters would want that as well.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2017 @ 12:52pm

        Re: Re: "Sen. Richard Blumenthal's stunning[???] response"

        hmm. Laws are broken in each state soo guess the politicians from each state need to be held responsible.

        reply to this | link to this | view in chronology ]

      • identicon
        John Smith, 25 Sep 2017 @ 10:59pm

        Re: Re: "Sen. Richard Blumenthal's stunning[???] response"

        Prisons are liable if prisoners get raped while in prison.

        Section 230 is the anomaly here, both legally and geographically.

        reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 1 Oct 2017 @ 6:31pm

          Re: Re: Re: "Sen. Richard Blumenthal's stunning[???] response"

          If I reply to your post with something that breaks the law, should you be held partially liable for what I wrote that you had no control over?

          But if you had not commented, I would be unable to reply to your post. Given how broadly SESTA is written, you might well be liable for what I post in that reply.

          Even if you're not, you'd spend tens of thousands, possibly hundreds of thousands of dollars in legal expenses proving it.

          reply to this | link to this | view in chronology ]

      • icon
        Griffdog (profile), 2 Oct 2017 @ 9:50am

        Re: Re: "Sen. Richard Blumenthal's stunning[???] response"

        "Or, well, I suppose it is possible that the SESTA supporters would want that as well."

        Did you mean to address your comment to, "Orwell, I suppose it is possible that SESTA supporters would want that as well."

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 25 Sep 2017 @ 12:30pm

      Re: "Sen. Richard Blumenthal's stunning[???] response"

      What's "stunning" about egregious cases?

      The “stunning” nature of his comment, in this instance, comes from the idea that those “outliers” he speaks of are automatically considered criminal. Look at the exact phrasing of his comment:

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

      He says nothing about a presumption of innocence. He says nothing about whether the “outliers” deserve any kind of legal protections. He says only that those outliers will be “successfully prosecuted”—that, in essence, they will be run out of business.

      The statement is “stunning” because our legal system works under the presumption of “innocent until proven guilty”—that is, a plaintiff must prove that a defendant violated the law. Senator Blumenthal is all but admitting that he sees accused or even potential violators—people not yet proven to have committed a crime—as people who do not deserve even the most basic benefit of the doubt offered by the courts.

      Anyhoo, this "little guys will lose" argument is put out any time looks like laws might be enforced. -- And the solution is to BREAK UP monopolies to put every corporation on more equal basis.

      Breaking up Google would not change how SESTA could potentially drive smaller startups out of business.

      there isn't any reason society MUST allow "platforms" to exist in first place

      Well, see, we have this legally-protected right called “freedom of expression”. Expressive speech typically requires a platform. I think even you can put two and two together here.

      We don't allow physical sites to be KNOWN criminal bases, so how is "teh internets" different?

      Law enforcement does not completely and permanently shut down a business just because a criminal happens to visit it. How should websites be any different?

      This academic weenie is just trying to limit the range of debate with "only the little guys will be hurt" so that the giant corporations go on without ANY responsibility.

      Except no. The article points out that Google will have the same responsibilities under SESTA as the smaller companies and startups. Then it points out how Google would have the bankroll to survive the increase in responsibility, whereas the smaller companies—the “outliers”—would not. At no point does the article say Google should escape responsibility for anything. If you can prove it did, now would be the time.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2017 @ 1:51pm

        Re: Re: "Sen. Richard Blumenthal's stunning[???] response"

        The statement is “stunning” because our legal system works under the presumption of “innocent until proven guilty”—that is, a plaintiff must prove that a defendant violated the law.

        Well, in theory anyway.

        In practice, the US hasn't really done more than pay lip-service to the concept for a while now, unless you're either able to pay out-of-pocket for lawyers, or are a sufficiently high-profile case to get the attention of, e.g., the ACLU.

        reply to this | link to this | view in chronology ]

        • identicon
          Almost Anonymous, 26 Sep 2017 @ 7:02am

          Re: Re: Re: "Sen. Richard Blumenthal's stunning[???] response"

          Completely agree. "Innocent until proven guilty" is now little more than a quaint notion. And it's not just in law enforcement. When people hear about someone getting arrested, there really is no question of guilt in their minds anymore. This is really a problem with websites that aggregate mugshots for, apparently, the sole purpose of letting people make funny comments about the "perps". At no point is there any thought that the people in the mugshots might be innocent, much less *are* innocent until proven otherwise.

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 25 Sep 2017 @ 3:10pm

        "The 1% are the norm. The other 99% are merely exceptions to the rule."

        The “stunning” nature of his comment, in this instance, comes from the idea that those “outliers” he speaks of are automatically considered criminal. Look at the exact phrasing of his comment:

        I'd argue that in addition to the presumption of guilt, it's 'stunning' in the sense that he's claiming that the overwhelming majority of sites online are 'outliers', flipping the definition of the word on it's head.

        Sites/companies with Google-level resources are in the minority, the majority do not fall under that category, so to brush them aside as 'outliers' as though they were a minority is insane.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2017 @ 2:31pm

      Re: "Sen. Richard Blumenthal's stunning[???] response"

      You didn't say the magic words.


      Common law

      reply to this | link to this | view in chronology ]

  • icon
    Chris ODonnell (profile), 25 Sep 2017 @ 12:32pm

    My next SAAS pitch to Y Combinator - SESTA (Filtering) as a Service.

    reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 25 Sep 2017 @ 12:34pm

    Election is Over

    The election is over. There is no need to pretend to care about anyone outside of the oligarchy let alone actually care.

    reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 25 Sep 2017 @ 12:37pm

    extinction

    Forums and comments become a thing of the past

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2017 @ 12:38pm

    Just goes to show the senator doesn't actually care about the victims. Now there will be no more evil trafficking on the web and he looks like he did a great thing. In reality, he has successfully moved all the bad traffic to TOR and crippled a part of the economy with pointless laws. Good luck finding your victims.

    reply to this | link to this | view in chronology ]

  • identicon
    kallethen, 25 Sep 2017 @ 12:45pm

    I'm now ashamed that CT is my state...

    reply to this | link to this | view in chronology ]

  • icon
    neost (profile), 25 Sep 2017 @ 12:48pm

    someday the only thing left on the internet will be the ability to purchase whatever goods and services the big corporations are pushing.

    that and what the government wants you to hear.

    whichever government happens to be in power.

    reply to this | link to this | view in chronology ]

  • icon
    aerinai (profile), 25 Sep 2017 @ 12:49pm

    SESTA -- Community Edition

    I hate these 'on the internet' laws that literally make no sense if you were to put them in a real-life scenario.

    The internet is just another 'place', and bad things happen in 'places'. If this guy was King of America, he'd start prosecuting Police Officers and Town Councils for not doing enough to 'stop sex trafficking' in each municipality.

    reply to this | link to this | view in chronology ]

    • identicon
      John Smith, 25 Sep 2017 @ 10:50pm

      Re: SESTA -- Community Edition

      Section 230 is an "on the internet" law that has no offline equivalent.

      Distributor liability (such as a newspaper for a letter to the editor) applies in the offline world, once the publisher is put on notice that a user (author) is making an actionable statement.

      The courts do not apply Section 230 to remarks made at the water cooler. Distributor liability is well established, but Section 230 has called itself an exception.

      The Supreme Court has never ruled one way or the other on Section 230, it should be noted, and the Seventh Circuit has not been on board with the other circuits. The law -- unique to America among western developed nations -- is far from settled, much as a small group of "free speech" lawyers might lead one to believe.

      Europe and AUS do just fine without Section 230. Why is that?

      reply to this | link to this | view in chronology ]

      • identicon
        Almost Anonymous, 26 Sep 2017 @ 7:20am

        Re: Re: SESTA -- Community Edition

        There is just no point trying to get through to you, I think. If you are so intellectually dishonest that you claim to not see the difference between an instantaneous "publishing" tool such as YouTube or Facebook and a newspaper printing press, then there is no reason to attempt to have a discussion with you.

        But just in case you might be able to be educated, here we go:

        YouTube/Facebook: push of a button to post material on an interconnected network that a large portion of the human race can view almost instantaneously

        Newspaper: written by several writer/reporters, reviewed and edited by editors, approved for printing by the editor-in-chief, sent for pre-press, reviewed and approved again, sent for actual press, printed, distributed to a section of the population, usually within 24 hours

        See the difference? And yes, I understand that it is difficult to "police" the instantaneous options. Too bad. Nobody ever said life was easy. But attacking the tool is just stupid. Do you throw away your razor every time you cut yourself?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Sep 2017 @ 8:10am

        Re: Re: SESTA -- Community Edition

        Your analogy fails because offline, publishers deal primarily in first and second party material (in-house articles, commissioned/solicited pieces), with a volume of third party material (letters to the editor) small enough to allow detailed editorial control of that material.

        Online, things get stood on their head. Not only does the balance of first/second and third party material shift for sites that are providing first party material, but several factors have driven the Web from "a bunch of folks with webservers in closets" to being reliant on the highly centralized platforms we see today:

        • Residential Internet access is often actively hostile to server hosting (not only ToS, but port blocks as well)
        • Server configuration and administration is rarely "turn-key", and the consequences of misconfiguration can be catastrophic (i.e. getting your box or entire network pwned)
        • Likewise, Layer 7 stacks have become far more complex, giving them a far larger attack surface (just look at the WordPress ecosystem)
        • Even if you are fully hardened against traffic that's trying to pwn your box and/or app, DDoS mitigation is out of the question due to the sheer volume of traffic you can come up against, and there are also other bad actors you must deal with, such as comment/form spammers

        Managed server hosting (shared hosting, VPS) somewhat fixes 1 and 4, while aggravating 2 due to additional control components (cPanel much?), and creating at least one additional platform dependency -- even if you have a hosting-friendly ISP, that's still an intermediary that can be held liable under your theory. DNS-level pressure is also quite hard to avoid, and a very real threat these days due to the sluggish (delayed by pressure?) rollout of DNSSEC.

        Using a UGC platform or managed service host trades not having to deal with all four of the above problems yourself for an additional platform dependency -- considering how technically complex dealing with those issues can become at times, even technical users often are at least somewhat reliant on UGC platforms for carrying their speech.

        As a result of all this, there needs to be at least some limit on intermediary liability in order for intermediaries to be viable entities at all. Strong common-carrier protections help ISPs (and to some extent perhaps registrars as well) dodge this bullet -- European ISPs don't appear to have intermediary liability issues, and I suspect this is why.

        However, common carrier protections don't help application-layer platforms, or even managed server hosts. This is where CDA 230 steps in in the US, allowing these entities to be viable by freeing them from what essentially is a liability catch-22. Without CDA 230 protection, not only could platforms be held liable for the speech they carry, but they could be held liable for moderation (editorial) decisions as well, penalizing good faith and allowing raw sewage (spam, mostly) to spill all over the Internet.

        As to the situation for application-layer platforms in Europe? Well, there is a definite chilling effect from the lack of any equivalent to Sec. 230 -- is it any wonder that the megaplatforms of today's Internet are largely US-based companies?

        reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 25 Sep 2017 @ 1:14pm

    She dumped the packet in hex

    and she swears she saw a penis...

    But, the dump in octal was more explicit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2017 @ 2:07pm

    This law is "Just give us the ability to punish anybody who *tries* to make an Internet startup without 24-7 overactive filtering algorithms."

    Yeah, um... you know how many bytes of data Google goes through doing what it does? How many servers it requires? How much energy it consumes? No, I thought not.

    That's asking any new startups to be Google and already have Google's resources from their tiny, dirty basements.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2017 @ 6:31pm

    There's a pretty good reason why SESTA is being pushed by the regular trolls here, same reason why the RIAA filed an amicus brief in the Perfect 10 cases. By associating themselves with the protection of society against erotic elements, they're hoping SESTA will offer some leverage in pushing more "notice and staydown" legislation, under the pretext that a website must destroy anything asked of them, on sight, with no room for debate.

    They might have been taken seriously too, if the RIAA hadn't spent years wasting what goodwill they had by proving that they can't identify infringing works and infringers either.

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 25 Sep 2017 @ 10:52pm

    Re:

    There is no Section 230 outside the US, so SESTA would be redundant. Sites are already liable for user-generated content and somehow the internet survives.

    reply to this | link to this | view in chronology ]

    • identicon
      Almost Anonymous, 26 Sep 2017 @ 7:25am

      Re: Re:

      And no other country in the world has free speech protections like the U.S. What the hell is your point?

      p.s. The internet is *not* doing well. It is well on its way to segmenting, largely due to this very issue. See "Russia", "China", and "UK" for examples.

      reply to this | link to this | view in chronology ]

  • identicon
    Almost Anonymous, 26 Sep 2017 @ 7:29am

    More worrying

    I'm really surprised that we're not talking/writing more about the bigger implications of SESTA, if it passes: it will be used as the slippery slope to even more censorship of material that the government doesn't like. All it takes is that foot in the door, then every other "illegal" thing can be attacked too, usually starting with political speech that the party in power doesn't like.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 26 Sep 2017 @ 8:14am

    Opportunity

    I se plenty of opportunity for an out-of-country server location.

    Although that didn't go well for Kin Dotcom, did it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2017 @ 12:15pm

    > Goldman was right: the greatest innovations in Internet services don’t come from Google and Facebook

    Be careful, Elliot. That kind of talk might get you sidelined.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Sep 2017 @ 7:43am

    The cure is always worse than the disease

    Whenever the media says, "there oughta be a law", the public should shout "be careful what you wish for".

    After choosing a platitudinous title, the lobbyists pervert every bit of the actual bill to do the most damage to that same public.

    We need more gridlock, not less!

    reply to this | link to this | view in chronology ]


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