Senator Portman Promises To Pass Bills To Harm Tech Companies If They Won't Support SESTA

from the this-is-how-you-legislate? dept

Senator Rob Portman, one of the authors of a terrible piece of legislation in SESTA, has gone on the offensive in trying to get the bill passed. He gave a rousing speech on the Senate floor, in which he (1) misrepresented his own bill, (2) misrepresented CDA 230, and (3) threatened to pass even worse legislation if more tech companies don't support SESTA.

I may not be an expert on how to legislate... but this does not seem like a good way to legislate.

Let's start with the most incredible part: the threat to pass even worse legislation if the tech industry can't support SESTA more broadly (and, remember, many of the biggest tech companies already support the bill). And, really, the main thing blocking the bill at this point is the fact that the House decided to go in a different direction with the bill, recognizing the myriad problems with SESTA. But, to Portman, it's all tech's fault, and thus this bizarre nonsensical threat:

If you don’t start cracking down on this obvious crime against humanity, which is what I believe trafficking is, I think you’re going to see much, much broader legislation to deal with the internet.

But, of course, all of the big tech companies ALREADY do "crackdown" on sex trafficking, whenever they're aware of it happening via their platforms. Notice that Portman doesn't actually name any of the tech firms as facilitating this -- he just insists they do. The only company he names, naturally, is Backpage. But he fails to mention that Backpage shut down its adult ads section due to lots of political pressure, and that the company is not immune from lawsuits for content it actually creates, and that the company is not immune from the DOJ filing a federal lawsuit, and that there's a still ongoing grand jury investigation into Backpage. In short -- existing law seems to be working just fine.

So why is Portman saying tech companies need to crack down on sex trafficking or he'll help pass an even worse law? It makes no sense, and is no way to competently legislate. It's a way to vindictively legislate in a manner that will have disastrous consequences for the internet, innovation and for free speech -- including the free speech of those who are actually working to stop sex trafficking, or who are victims who need help. SESTA makes the problem worse. Blaming intermediaries doesn't help anyone stop sex trafficking. It doesn't provide any new tools for law enforcement to go after sex traffickers. It does create incentives for tech platforms to not look to clean up their sites -- the exact opposite of what Portman is talking about above -- because it includes a "knowledge" standard. And what's the best way to avoid having knowledge? By NOT LOOKING.

It's a bad bill that will make the problem of sex trafficking worse, not better.

The rest of Portman's talk is filled with other misleading or simply wrong statements.

Here’s the tragic part of this. Not only are more and more lives being ruined, more and more heartbreaking stories, but it’s because of a federal law that provides immunity to these websites. So it comes right back here, right to these desks, right to this Congress, right to us as legislators to fix this problem—not try to smooth it over, but to actually fix the problem, which is that some of these online trafficking sites are immune from prosecution because of a federal law. It was a well-intended law. It was written 21 years ago—the Communications Decency Act.

No. It's because horrible human beings are engaged in sex trafficking, and the focus should be on tracking them down and arresting them. SESTA doesn't help with that, and in fact makes it more difficult. Also, more importantly, the immunity provided to websites by CDA 230 is limited. It doesn't apply to federal crimes (remember that federal grand jury mentioned above?). It doesn't apply to content created by the website. It doesn't apply to the people actually creating the content (i.e., the sex traffickers themselves). Why doesn't Portman admit to any of this? Because it destroys the rationale for the bill.

Ironically it was put in place, in part, to make it a crime to send pornography to kids online, but it’s been twisted and used by these trafficking sites to provide them the ability to say ‘you can’t touch us. You can’t go after us.’

Uh, Senator Portman is leaving out a key piece of all this: which is that while it's true that the CDA was put in place to make it a crime to send pornography online, that whole part of the law was thrown out as unconstitutional and a First Amendment violation. It's not that the law was "twisted." It's just that the part he's talking about was BLATANTLY A VIOLATION OF THE CONSTITUTION that Senator Portman has sworn to uphold. The part that remained of the CDA -- Section 230 -- is the part that actually encourages sites to filter, moderate or remove content by limiting liability.

SESTA changes that equation and actually removes much of the incentive to moderate the content. It creates incentives for the companies not to even look.

Part of what the law says in trying to promote the internet is that if you post somebody else’s material on your site, you’re not liable.

This wasn't to "promote the internet," it was to correctly apply basic principles of liability. You don't blame the tool. You blame the user. If a platform hosts content, you blame who created the content. Also, Portman is misprepresenting CDA 230 in the sentence above. While it's true that it does protect platforms that "post somebody's else's material," that's not the key part of it. That implies that CDA 230 is designed to protect the deliberate action of "posting somebody else's material." But the law is even more about content posted by users. In most cases, it is not the site "posting somebody else's material," it's users posting their own material. And NOTHING in the law says that those users can't be prosecuted if the material violates the law. It just says you don't blame the tool, who is the service provider hosting the material.

All we’re saying is if you know that this involves trafficking, and Senator Blumenthal talked about his experience as a prosecutor, I mean this is a high bar—the knowing standard, then you can’t get away with this.

Except the standard, as written, is not actually that high. It was improved from its even worse initial draft, but is still quite broad, and would leave tons of sites completely at risk of frivolous lawsuits.

By the way, the other side of the argument is by the tech community, some of whom support this legislation, some of whom do not. But for the people in technology who are concerned about this, I just have to tell you, I don’t get it. This is very narrowly crafted to this issue. We’re not trying to affect the freedom of the internet, just the opposite.

IT IS NOT NARROWLY CRAFTED. That's what people keep trying to explain to Portman. He can repeat "it's narrowly crafted" over and over again, and people who actually have experience with attacks on internet platforms know that, as written, it will lead to a lot of frivolous litigation and fishing expeditions -- and widespread censorship to avoid liability, along with LESS activity by platforms to moderate the content. THAT is the concern. No one who is fighting SESTA is arguing that we shouldn't go after those responsible for sex trafficking. We're explaining how this bill DOES NOT DO THAT and not only will very likely MAKE THE PROBLEM WORSE, but it will also have massive collateral damage -- including damage that will make it harder to stop sex trafficking.

And for those in the tech community who continue to oppose this legislation, I ask you to look into your hearts and think about the impact this is having on families all across the country.

Yes. That's why Portman can't name a SINGLE site other than Backpage that he claims is responsible here (and he never mentions that Backpage stopped adult ads). Because these sites do care about this issue and they don't allow or encourage sex trafficking on their platforms. So why is he asking them to "do more" when the only things in his bill will encourage these sites to "do less"? And why is he threatening to pass even worse legislation?

Is this really how Senator Portman legislates? By misrepresenting facts? By misrepresenting existing law? By misrepresenting his own bill? By misrepresenting what companies currently do? And then by threatening to pass even worse legislation if companies don't do the thing they've always done already?


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  • identicon
    Anonymous Coward, 11 Jan 2018 @ 9:41am

    I want to appologize to everyone...

    Portman is from my home state.

    He doesn't really believe this stuff. This is just him gearing up for a run in 2024.

    Portman will do ANYTHING for votes and to raise funds. He is a quintessential DC insider that could care less about the Constitution.

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

    • icon
      ShadowNinja (profile), 11 Jan 2018 @ 10:43am

      Re: I want to appologize to everyone...

      I wish all these senators wanting to run for president got off their high horse and just did their job instead of trying to campaign for president.

      The senate is historically a very bad place to run for president from. Counting only politicians who made it to the general election, senators are far more likely to lose then to win.

      (The governor's mansion has historically long been a better place to run for president from)

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

      • icon
        Uriel-238 (profile), 11 Jan 2018 @ 10:58am

        Doing their jobs instead of campaigning

        Pournelle's Iron Law of Bureaucracy seems to apply here, in which the functions of protecting jobs becomes more important than the functions of doing jobs.

        Hence for our elected officials, campaigning is their job. Actually governing is not, except how it relates to campaigning.

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

      • identicon
        Thad, 11 Jan 2018 @ 12:40pm

        Re: Re: I want to appologize to everyone...

        I wish all these senators wanting to run for president got off their high horse and just did their job instead of trying to campaign for president.

        Not much for a Democratic senator to do right now besides campaigning (whether for president, for reelection, or for other Democrats). The vast majority of any legislation they write at this point isn't going to pass; the best it can do is make an argument for why they should be in charge instead of the Republicans.

        The senate is historically a very bad place to run for president from. Counting only politicians who made it to the general election, senators are far more likely to lose then to win.

        Historically, this is true, but ultimately we're looking at a pretty small sample size; only 39 people have ever been elected president. And Trump violates a lot of historical precedents.

        (Trump is the 45th president, but that includes five VPs who became president and were not reelected (Tyler, Fillmore, A Johnson, Arthur, and Ford) and one president who was elected to two nonconsecutive terms (Cleveland).)

        It's not clear how much the "sitting senators don't get elected president" rule still applies. The last time we had a sitting senator run was 2008 -- and both Obama and McCain were sitting senators, so obviously one of them was going to win.

        (Of course, the last two before that were Kerry and Dole, and both of them lost to an incumbent president. It's not clear, however, that they lost because they were senators; it could also be that two-term presidencies are the new norm. After all, Romney lost to Obama, and he wasn't a senator.)

        Regardless of whether they'll prevail in a general election, I think the Senate seems like the likeliest place for the next Democratic nominee (unless it's Oprah, I guess). I can name five senators, off the top of my head, who seem like potential presidential contenders. Outside the Senate, the only viable choice I can think of is Biden.

        It is, of course, possible that the nominee will be somebody unexpected. But the expected options mostly look like they're in the Senate at the moment.

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

        • identicon
          carlb, 13 Jan 2018 @ 7:14am

          Re: I want to appologize to everyone...

          "Outside the Senate, the only viable choice I can think of is Biden."

          Oh, but Biden was a senator, according to his Wikipedia bio: "A member of the Democratic Party, he represented Delaware as a U.S. Senator from 1973 to 2009."

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

          • icon
            orbitalinsertion (profile), 13 Jan 2018 @ 10:03am

            Re: Re: I want to appologize to everyone...

            The point is about sitting Senators, not those who have been a Senator at some time.

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

            • identicon
              Thad, 15 Jan 2018 @ 8:57am

              Re: Re: Re: I want to appologize to everyone...

              Yes, thank you.

              If only I had made that clear. By, for example, using the phrase "sitting senators". Three separate times.

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

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 11:23am

      Re: I want to appologize to everyone...

      Who will likely be running against Portman and are they accepting contributions now?

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

  • icon
    That Anonymous Coward (profile), 11 Jan 2018 @ 9:42am

    Blowhard screams for attention, hopes for film at 11.

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 9:46am

    Not only are more and more lives being ruined, more and more heartbreaking stories, but it’s because of a federal law that provides immunity to these members of congress.

    fixed that for him

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

    • identicon
      Sharur, 11 Jan 2018 @ 10:35am

      Re:

      Technically its not a law, federal or otherwise. It's part of the US Constitution.

      "...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
      -US Constitution, Article 1, Section 6, also known as the "Speech or Debate Clause".

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 9:52am

    Sounds like Legislative Extortion. I wonder if it could be prosecuted under existing extortion laws

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

    • icon
      Sharur (profile), 11 Jan 2018 @ 10:37am

      Re:

      They cannot be, due to part of the US Constitution.

      "...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
      -US Constitution, Article 1, Section 6, also known as the "Speech or Debate Clause".

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 9:54am

    In other news, Portman is introducing a bill to curb the shortage of blood donations by tapping existing turnip resources.

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

  • icon
    Roger Strong (profile), 11 Jan 2018 @ 9:59am

    If you don’t start cracking down on this obvious crime against humanity, which is what I believe _____ is, I think you’re going to see much, much broader legislation to deal with the internet.

    Someone's been spending too much time with copyright lobbyists.

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 10:08am

    Oh THAT Senator

    I started reading the headline and my immediate thought was "What about Natalie Portman/Senator Amidala?".

    Then I saw the SESTA part and realized we were talking about a different senator. :P

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 10:13am

    Seems like the best way to deal with his threats and attitude is for tech companies to ask him to either go on record presenting formal accusations with evidence if he has it or shut the hell up with the vociferous grandstanding.

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

  • identicon
    TDR, 11 Jan 2018 @ 10:20am

    While it's quite right to go after the traffickers themselves, almost nothing seems to ever be said about doing the same about their clients. Possibly because many of them may be either very wealthy, very powerful, or both. And the last thing they want is any way to trace these activities back to them, possibly back to the very people pushing for bad laws like this. As the old saying goes, those going on the most about the wrongs of others tend to be even more guilty of those same wrongs. Too bad we don't yet have evidence of Portman as a client of these monsters.

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 10:26am

    If the NSA cannot find these human traffickers and send in law enforcement, how does he expect the tech companies to stop them, magic?

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

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 11:58am

      Re:

      Are these traffickers similar to the mythical welfare queens of yesteryear?

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

      • icon
        Uriel-238 (profile), 11 Jan 2018 @ 12:30pm

        Human Traffickers

        Nope. They're real. And they've found trafficking reaches more paying johns through free-ad sites like Craigslist and Backpage.

        But charging Craigslist and Backpage (both of whom have been more than happy to cooperate with law enforcement to track down pimps) is like charging car companies for supplying bank robbers with getaway cars.

        Yes, trafficking is a real problem (though it is difficult to determine how many unreported incidents there are). This is just a really bad way to approach it. It's not going to catch pimps, but it will kill a lot of legitimate internet businesses that are useful to a lot of people. And it will do so on the grounds that those businesses might be useful to pimps.

        So yeah, the getaway cars proverb applies: We're shutting down the automotive industry because criminals may find cars useful.

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

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 4:53pm

      Re:

      He expects them to hand him a magical backdoor key that he swears will only work for the good guys.

      That was an obvious joke, sadly not particularly sarcastic, because that's exactly what these psychopaths believe.

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

  • icon
    Bergman (profile), 11 Jan 2018 @ 10:39am

    If SESTA passes

    Someone ought to spray paint "For a good time, call Jenny at 867-5309" on Portman's house. It's technically a sex trafficking ad, an awesome pop culture reference, and if he has it removed then he provably had knowledge of it.

    The fact that it was possible to paint it on his house at all would mean he facilitated it -- the fact that the rules of the site prohibited such a thing (trespassing laws, vandalism laws, etc) would be irrelevant.

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

    • identicon
      carlb, 13 Jan 2018 @ 7:22am

      Re: If SESTA passes

      Posting "For a good time, call Jenny at 867-5309" invokes various basic network concepts, such as distributed denial of service, which might be a bit too complex for an American legislator to understand.

      After all, the Internet isn't some big truck that you put things on. It's a series of tubes.

      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, 11 Jan 2018 @ 12:03pm

    Masnick's favorite companies already supported SESTA.

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

  • icon
    ECA (profile), 11 Jan 2018 @ 12:37pm

    WHY??

    Lets ask what this would really do...
    Insted of reporting a Advert/TEXT/Want AD/??? that has something to DO WITH HUMAN TRAFFICKING... The Owner of the site has to take it DOWN..and destroy it..

    So what does the person who POSTED it do..
    He goes underground, and not public.

    Think about those involved..
    You need to kidnap a Person/child..WHY WOULD YOU DO THIS..MONEY.
    Then you have to SELL the person/child..WHY?? MORE MONEY..
    Break down numbers say that MAYBE 100 children are taken per year, AT MOST.
    ANd if there REALLY is a market for this, it is in the USA and NO ONE is shipped out of the country..

    So we have a bunch of RICH people PAYING GREAT amounts of money to BUT children..
    HOW?
    You probably wont do this Much inside a Large city..as someone MIGHT notice something or the PERSON escape.
    So, yo have a residence and CAGE/CHAIN what ever is needed outside of the main areas PEOPLE RESIDE..
    AS with any PET..you need to feed it, and clean up After it..
    These person MUST be Fairly rich..ion 1 way or another.

    Persecuting ONLINE sites or REAL NEWSPAPERS or those that just MONITOR their own sites...is STUPID.
    ANd anything they do, will FORCE this underground where you WONT SEE IT..Where it CANT be reported.

    This is as bad as regulating CRAP(yes #2)..we all do it..you may not see it much, but you know the other person DOES IT ALSO.. But if you regulate it, they will just Blame it on the DOG..

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

    • icon
      Uriel-238 (profile), 11 Jan 2018 @ 4:17pm

      Useful notes on Human Trafficking

      Kidnapping kids into trafficking is rare in industrialized nations. Typically, they don't grab children piecemeal, rather capture entire villages, children and adults alike, and selling those not viable for sexual slavery into labor (and killing anyone not viable). It happens quite a bit in Central and South America, and abduction for trafficking is a common end to many who are deported from the United States if they don't have sufficient roots in their destination country. (Exasperated when many get deported to an entirely non-native country.)

      From there, children are sold to brothels in places like Thailand, Indonesia or Columbia (to name a couple). Trafficked prostitutes average a lifespan of seven years in captivity. No they aren't treated well.

      In the United States, teens are trafficked from broken homes and lower class neighborhoods in which parents don't have the time or means to watch over them. Groomers watch for kids for symptoms of dysfunction and then promise them a better life. A few gifts and restaurant meals are commonly enough to seal the deal.

      That's when the victim is driven to another town and forced to work. Sometimes they're broken in via a drug addiction, but in many cases, threats, promises and the beat-down/honeymooning routine will keep them in line. Then they typically make for their respective pimps about a $1000 a day while on duty.

      Human Trafficking in the US is a symptom of our system of debt-servitude, where a person needs to work full time to sustain themselves, let alone sustain children. Parents have to work full time and come home exhausted and unable to parent. But we're not going to change that without major society reform:

      Create a society where a parents can raise kids with part time work, and not come home exhausted, so they have both time and energy to engage their progeny.

      Create a society in which the community watches over and cares about kids not their own, so it confronts bullies and mischief, so it addresses dysfunctional homes.

      Do that, and sex trafficking vanish.

      But right now our society puts people into debt and forces them to work themselves exhausted just to live.

      Our entire society is based on servitude. Human Sex Trafficking is par for the course. It just happens to be one that we can't bare to look at. But that is the course our nation chose, much like letting Trump and the GOP get into office.

      Portman is anti ACA, anti-abortion, anti-maternity, anti-contraception, pro-school-voucher Senator. He gives zero fucks about children and mothers.

      So frankly, by his actions and policy choices he has chosen to make his a pro-Human-Trafficking state.

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

  • identicon
    Anonymous Coward, 11 Jan 2018 @ 1:02pm

    You know what is rousing

    Our PM almost screamed in a town hall that Canadians do not support TORTURE no matter who or how despicable we think people and that Canadians should be angry that we paid out over 10 million to someone that most people think is a terrorist because we handed him over to the Americans and sent him to be tortured at gitmo, and that we should be angry that we violated such basic human decency to please war criminals like bush

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

    • icon
      Roger Strong (profile), 11 Jan 2018 @ 1:48pm

      Re: You know what is rousing

      > to someone that most people think is a terrorist

      AKA a kid who was caught in the crossfire of a military attack on his village because his father dropped him into a war zone and left him there. A kid who *may* have fought back - even the American soldiers present disagree on this - but if so that would make him a soldier, not a terrorist. And a child soldier at that.

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

      • icon
        Uriel-238 (profile), 11 Jan 2018 @ 4:24pm

        Torture

        We send Americans who have nothing to do with wars abroad to be tortured. We do so without trial or review. It's extrajudicial.

        This has been going on since 2003. We don't get to read the 6000 page review on it. The CIA is still trying to bury it. And it hasn't stopped.

        When we care -- which we sometimes don't -- we render our victims to foreign mercenaries where their agents do it for us, so we can say The US didn't torture this guy No, we outsourced it.

        2003 was the year I realized that America was unexceptional. Before that, I believed we don't do that in America. Where that one of any number of heinous, monstrous deeds.

        Now I'm sure we do anything.

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

  • identicon
    John Smith, 11 Jan 2018 @ 3:28pm

    Worried?

    Afraid you can't pull the wool over Washington's eyes anymore?

    How do you sue an anonymous or judgment-proof poster for what they do, when it's the search engines who cause the damage and don't have to remove the defamation? No other country recognizes 230 and neither should we. 230 was passed to promote growth of the internet but now that the internet is mature, i.e., people they care about are defamed, they will restore defamation law's historical distributor liability. The SCOTUC has never ruled on 230 but a small group of people who seem to have a lot invested in a defamatory internet are panicking.

    To the indivdiduals trampled by 230, all people say is that Google is more important than any individual. An increasing number of individuals are disagreeing. Maybe the little cybergoons hired by attorneys to set up litigious targets for lawsuits will be out of a job, and their attorney masters will lose some business, but the world would be way better off without Section 230.

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

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 4:05pm

      Re: Worried?

      Tell you what, come back when you have reviewed all the videos on YouTube whose upload was started in a single minute, it shoudn't take you more that a decade or three, depending on how much time toy spend eating, sleeping etc.

      The choice is that either the Internet is an open platform, where various services allow people to publish without seeking anybody else permision, or it it becomes something with gate keepers, in which case a fraction of a percent of people can use it to publish their works.

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

    • identicon
      Thad, 11 Jan 2018 @ 4:20pm

      Re: Worried?

      Say, Mr. Smith. What's your opinion on chemtrails and the Illuminati?

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

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 8:28pm

      Re: Worried?

      Do the cops arrest the person who reports a crime or do they attempt to arrest the person who committed the crime?

      Think about this for a second before answering .. on second thought, dont bother.

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

  • identicon
    Anonymous Coward, 12 Jan 2018 @ 9:15am

    And cue Senator Rob Portman in paedophilia/human trafficked young girls/boys / forced abortion scandal in 5..4...3..2..

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


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