House Prepared To Rush Vote On Terrible Frankenstein SESTA, Which Will Harm Trafficking Victims & The Internet

from the big-massive-mistake dept

Things had been mostly quiet on the SESTA/FOSTA front for the past few weeks, but apparently that's about to change, as the House leadership has agreed to a plan to rush the bill to a full floor vote next week, by creating a terrible Frankenstein of a bill that solves none of the existing concerns people had -- but creates new ones. If you don't recall, there are competing bills in the House (FOSTA) and the Senate (SESTA) which purportedly both attempt to deal with the problem of human traffickers using internet services to enable illegal trafficking. Both bills have serious flaws in how they attack the problem -- with the potential to actually make the problem of trafficking worse while also screwing up how the internet works (especially for smaller internet services) at the same time.

Things had been at a standstill for the past couple months as the House pushed its approach with FOSTA, while the Senate stood by its approach with SESTA. SESTA works by changing Section 230 of the Communications Decency Act to create a huge hole saying that CDA 230 doesn't apply if a site "knowingly facilitates" a violation of sex trafficking laws. If you don't have much experience with how similar laws work on the internet, this might sound reasonable, but in practice it's not. There's a similar "knowledge" standard in copyright law, and we've seen that abused repeatedly to censor all sorts of content over the years. You just need to allege that something violates the law, and a platform seeking to avoid potentially crippling liability is likely to remove that content. As I've noted, if the law passes, almost every internet company will be put at risk, including anyone from small blogs like ours to Wikipedia. The bill's backers seem to think this is a benefit rather than a problem -- which is quite incredible.

Until now, the House had been pushing an alternative proposal, called FOSTA, which tried to achieve similar results without punching a giant hole in CDA 230. Instead, it focused on creating a new crime for those with the intent to promote or facilitate prostitution. The intent standard is a much stronger one than the "knowledge" standard. There were still a couple of problems with FOSTA, though. Rather than focusing on sex trafficking, it covered all prostitution, which is too frequently lumped in with trafficking, and worried many in the community of folks supporting the rights of sex workers. But, a larger issue was that this would still open a huge hole for state and local prosecutors to go on massive fishing expeditions if any sort of prostitution related content ended up on any website. Even if they couldn't show intent, they could still bog down almost any internet platform with charges and investigations for quite some time. I mean, even we get people trying to spam our comments all the time with what appear to be prostitution ads. We catch most of them, but what if a few get through and some law enforcement agency wants to make life difficult for us? Under FOSTA, that's a real possibility. Such laws can be abused.

Still, the approaches were so different that things appeared to mostly be at a standstill. However, as noted above, suddenly things are moving and moving fast... and in the worst possible way. House Leadership apparently decided that rather than convince the Senate to move to a FOSTA approach, they would just bolt SESTA onto FOSTA via an amendment. And then, suddenly the House bill has all the problems of both bills without fixing either.

That amendment was released yesterday and is being introduced by Rep. Mimi Walters of California. Her district includes Irvine, which houses a whole bunch of tech companies who should be absolutely furious that their own representative just made things much more difficult for them. Take, for example, JobzMall, an Irvine-based company for connecting workers and employers. It's not difficult to think of how some might try to abuse that tool for prostitution or trafficking -- and suddenly the site may face a ton of legal fights, fishing expeditions and criminal threats because of this. That seems like a huge, huge problem.

And, importantly, it cannot be stressed enough that nothing in either of these bills does anything at all to actually stop sex trafficking. Supporters of the bill keep insisting it's necessary to stop sex trafficking and that those opposed to the bills are somehow in favor of sex trafficking. That's just wrong. Those opposed to the bill know what happens when you have mis-targeted bills that hold platforms responsible for what users do with them: and it's not that the "bad stuff" goes away. Instead, the bad stuff tends to continue, and lots of perfectly acceptable things get censored.

A recent paper by one of the world's foremost experts on "intermediary liability," Daphne Keller, explains why the bill won't work based on years and years of studying how these kinds of intermediary liability laws work in practice:

SESTA’s confusing language and poor policy choices, combined with platforms’ natural incentive to avoid legal risk, make its likely practical consequences all too clear. It will give platforms reason to err on the side of removing Internet users’ speech in response to any controversy – and in response to false or mistaken allegations, which are often levied against online speech. It will also make platforms that want to weed out bad user generated content think twice, since such efforts could increase their overall legal exposure.

And, again, NONE of that does anything to actually go after sex traffickers.

As Keller notes in her paper:

SESTA would fall short on both of intermediary liability law’s core goals: getting illegal content down from the Internet, and keeping legal speech up. It may not survive the inevitable First Amendment challenge if it becomes law. That’s a shame. Preventing online sex trafficking is an important goal, and one that any reasonable participant in the SESTA discussion shares. There is no perfect law for doing that, but there are laws that could do better than SESTA -- and with far less harm to ordinary Internet users. Twenty years of intermediary liability lawmaking, in the US and around the world, has provided valuable lessons that could guide Congress in creating a more viable law.

But instead of doing that, Congress is pushing through with something that doesn't even remotely attempt to fix the problems, but bolts together two totally separate problematic bills and washes its hands of the whole process. And, we won't even bother getting into the procedural insanity of this suddenly coming to the House floor for a vote early next week, despite the Judiciary Committee only voting for FOSTA, but not this SESTA-clone amendment.

This is a terrible idea, done in a terrible way and Congress seems to be doing it because it wants to "do something" about sex trafficking, without realizing what it's doing won't help stop sex trafficking, and could create massive harm for the wider internet. It's the perfectly dumb solution to the wrong problem. It's a very Congress-like approach to things, in which "doing something" is much more important than understanding the issues or doing the right thing.

And, once again, while some are incorrectly insisting that "the big tech companies" are against this, they are not. Their trade group, the Internet Association, came out in favor of SESTA's approach and Facebook in particular has gone all in supporting the bill. In talking to people familiar with Facebook's thinking on this, they recognize that they can withstand whatever bullshit comes out of this, but they know that smaller platforms cannot. And to Facebook, that is one of the benefits of SESTA. It weakens the competition and hurts smaller companies.

So, no, this is not "big tech" fighting SESTA. Basically every smaller internet platform I've spoken to is upset about this and trying to figure out how they're going to handle the inevitable mess this causes. But few are willing to speak out publicly, because they know that SESTA supporters will vocally attack them and falsely claim that they're "in favor of sex trafficking." Incredibly, most of those attacks will come on platforms that only exist because of CDA 230's strong protections.


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  • icon
    ShadowNinja (profile), 22 Feb 2018 @ 10:00am

    It's like this government wants to go down as the worst government in the history of the US on tech issues, by fucking up as much as they possibly can for the tech industry in 2 short years.

    Previous governments and congresses made that tough for them with all the damage the NSA/etc. did to the reputation of US tech companies, causing some foreigners to boycott US made tech products. But these congressmen are trying their damnest to top that by letting Pai repeal net neutrality and enabling new censorship on the web.

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 10:18am

    since when has the USA govt or politicians given a toss about anything Internet related, other than to fuck things up?

    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, 22 Feb 2018 @ 11:10am

      Re:

      It when change then the voters change.

      But as long as they keep saying they are not responsible for the people they vote in, they are going to keep getting what they get.

      That is what I like about America. They call it a Democracy, even though technically that is not true, then they say that people should have a democracy until they find a victim class that should get special protections preventing the will of a democracy. Then they will win about the people they vote in, while falsely believing that they have a democracy and decry anyone telling them that is their fault a victim blamers.

      Know what else? They will ask government to regulation something removing all form of democracy while saying the will of the people should be followed.

      I don't know if these guys know this or not... but they pretty much stick the knife right into their own or each others backs, turn around and then blame someone else not part of their group.

      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, 22 Feb 2018 @ 12:04pm

    This is the same SESTA your friends at Facebook and Google support, right Mike?

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

    • icon
      Mike Masnick (profile), 22 Feb 2018 @ 1:24pm

      Re:

      This is the same SESTA your friends at Facebook and Google support, right Mike?

      You didn't even read the full story did you?

      And, this is the same anonymous commenter who insisted just yesterday that I automatically support "whatever Facebook wants", right?

      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, 23 Feb 2018 @ 5:53am

        Re: Re:

        So Sorry Mike... I suppose this really puts Google's funding of Copia at risk. You just couldn't deliver this time. The winds are changing.

        But hey, it's been a good business model for you... Pretend to be a tech journalist while being funded to the hilt by Google. Beat up all of Google's competitors for not being open and transparent about their funding, but clam up when anyone asks you about your own revenue model.

        You're a pay for play fraud Mike, and you always have been.

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

        • icon
          Ninja (profile), 23 Feb 2018 @ 7:38am

          Re: Re: Re:

          I've been reading the same empty comments for years now. All the sponsors are stated in a very public manner but nothing is enough for the almighty Anonymous Coward.

          Mike is going to fall into discredit. I'm sure it will happen. Sometime. Anytime soon. Now. Please? Pretty please? - Anon Coward

          Go take your medicine ;)

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

        • icon
          That One Guy (profile), 23 Feb 2018 @ 7:43am

          Re: Re: Re:

          So no addressing his point, just back to the usual joke of a personal attack.

          Keep whaling away at that figment of your imagination if it makes you feel better, just keep in mind the only one who believes you is you.

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

        • icon
          Mike Masnick (profile), 23 Feb 2018 @ 8:23am

          Re: Re: Re:

          So Sorry Mike... I suppose this really puts Google's funding of Copia at risk. You just couldn't deliver this time. The winds are changing.

          I'm curious about how this delusional conspiracy theory works in your brain. Talk me through the logic. I'm honestly trying to understand how you think it makes any sense. On this very story we're disagreeing with Google -- as we've done many times in the past. And yet, you insist that I'm a "pay to play fraud" who only does Google's billing. And now Google will be upset that I "didn't deliver" on... what, exactly? On disagreeing with them loudly enough?

          Please. Do explain. I'm curious how this works in your delusional brain.

          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, 23 Feb 2018 @ 1:35pm

            Re: Re: Re: Re:

            1) Where are you disagreeing with Google? You're disagreeing with the Internet Association for not doing Google's bidding. Google is a *member* of IA, along with 40 other members, but they no longer call the shots... They got rolled by IA in fact because the other IA members (primarily Facebook, most likely Sandberg) were disgusted and appalled by the prospect of opposing legislation to protect 12 and 13-year old victims of sex trafficking. Google, drunk with it's monopoly power was too obtuse to realize that it's no longer like the old days. The optics were terrible.

            2) Once Google lost IA they wound up their stenographers (you, CDT and Engine Advocacy) to push the idea that the big SV monopolies caved on opposing SESTA. Google didn't cave, they were rolled but it's a convenient fig leaf for you... Gives you cover to say, "see I oppose Google too!" Nonsense.

            3) If you value openness and transparency, just answer these questions:

            - How much money did Google give you to start Copia Institute?

            - Where do you disclose that on the Copia Institute website?

            - How much did Google give you and CDT to start section230matters.com?

            - Is it just a coincidence that virtually *all* of the groups you have listed on section230matters.com who signed letters opposing SESTA are funded by Google? CDT alone has received millions from Google.

            - Do your coordinate with Derek Slater? Or is it Adam Kovacevich?

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

            • icon
              That One Guy (profile), 24 Feb 2018 @ 9:21am

              "Have you stopped beating your wi- I mean working for Google?"

              Why would he waste any time answering your questions, given you wouldn't believe anything that didn't match your preconceived notions?

              If for example he answered 'none, not applicable, and none' to your first three questions, would you believe him and accept that you're wrong, or would you merely double-down and insist (again) that he's lying because he simply must be working for Google?

              (To be clear this is mostly a rhetorical question, given I think we both know the answer.)

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

  • icon
    ECA (profile), 22 Feb 2018 @ 12:47pm

    sAY IT AGAIN

    Numbers from the NET, are NOT correct..

    If they WERE EVEN 1/2 close to ANY REALITY.

    We would have 3+ per day Children, being Kidnapped from EVERY STATE..
    Even at 1/100..
    Think about this HUGE NUMBER..
    If this many children were being Kidnapped, we would be having YELLOW ALERTS EVERY DAY..
    ANd place RUNAWAY AND PARENT ABDUCTIONS INTO THIS IS STUPID.
    PAPER WORK that hasnt.isnt concluded, Police LAZINESS and families NOT reporting child returns or relocation.

    A couple groups went thru allt he numbers and got them DOWN TO 100-300 per year..

    NOW do some thinking here...HOW much would this cost a person HIRING OTHERS TO DO THIS??
    Privately, Quietly, adn so they dont get Caught...AND YOUNG ENOUGH TO BE BRAIN WASHED.. Have PRIVATE DOCTORS to help keep the CHILD healthy..
    WHO would have the MONEY, LOCATIONS, ACCESS to the needed TIME to do this??

    In the end, WHAT is this LAW GOING TO DO??
    Give another reason to WATCH AND RULE OVER US, with little or no reasoning. AND MAKE A HOLE TO THROW MONEY INTO that will get picked up and DISAPPEAR..

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

  • identicon
    John Smith, 22 Feb 2018 @ 4:16pm

    It's like companies who complain they can't run their businesses if they have to pay minimum wage. We don't need those businesses in the first place.

    Section 230 is an abomination that is supported by lawyers and internet companies who profit from conflict, and/or who use third parties to distance themselves from criminal conduct, and to immunize themselves against lawsuits.

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

    • icon
      Mike Masnick (profile), 22 Feb 2018 @ 5:09pm

      Re:

      It's like companies who complain they can't run their businesses if they have to pay minimum wage. We don't need those businesses in the first place.

      Huh?

      Section 230 is an abomination that is supported by lawyers and internet companies who profit from conflict, and/or who use third parties to distance themselves from criminal conduct, and to immunize themselves against lawsuits.

      None of that is true. It is mostly supported by free speech supporters who have tons of evidence that without a 230 like setup, you get vast censorship of speech.

      And nothing in 230 immunizes those who actually break the law. Which is, you know, kind of the point.

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

  • icon
    restless94110 (profile), 22 Feb 2018 @ 5:05pm

    Trafficking is Mostly Fake News

    Trafficking is the new word for prostitution. Don't fall for it! Only think is: Congress already did!

    This is nonsense at level defcon 5.

    America: we are lost.

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

    • icon
      NaBUru38 (profile), 23 Feb 2018 @ 3:48pm

      Re: Trafficking is Mostly Fake News

      Just like "commercial-scale copyright infringement" is the new word for "uploading a video of a baby dancing to music to YouTube".

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

  • icon
    David (profile), 22 Feb 2018 @ 8:24pm

    Just watch the alt-right cry.

    All those toxic forums - poof, gone.

    Any phrase that suggests sex, sexual favors, well - just turn them into the feds. Get their real name and go have a talk with DHS, local cops, the FBI, or the border patrol. Well maybe not the last one.

    Looking forward to their tears. Not a silver lining but better than nothing.

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

  • icon
    That One Guy (profile), 23 Feb 2018 @ 12:17am

    "My soundbite trumps your open platform and the speech it enables."

    This is a terrible idea, done in a terrible way and Congress seems to be doing it because it wants to "do something" about sex trafficking, without realizing what it's doing won't help stop sex trafficking, and could create massive harm for the wider internet.

    It's a terrible idea if the goal is to actually do anything effective about the problem.

    It's a great idea if the goal is to look like you're doing something about the problem, without having to actually do anything.

    The first would require work, money, would not provide an instant 'win' to point to and would allow grandstanding by those looking to score cheap PR by insisting that the problem is easy to solve('Just pass a bill! MY bill to be specific.') and the ones actually trying don't really care or they'd take the easy path.

    The second requires a single vote and the arduous chore of making some empty statements about how very much they care about the problem and how they bill they are voting on is sure to do a real number on the problem(with of course no need to verify that down the line).

    It's a cheap and empty PR stunt, the problem is that as PR stunts go this one stands to result in a massive amount of collateral damage.

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

  • identicon
    MirceaKitsune, 23 Feb 2018 @ 11:48am

    An organized movement to end the open internet

    Please open your eyes people! This is part of a worldwide movement to end the open internet and take control of all communications. Every supposed "democracy" started undermining the open web since last year in its own unique way:

    - Britain wants every citizen to use the internet with their ID or credit card, because in the 21th century they're still afraid of kids looking at porn. In their view every porn site must be declared illegal and fined or blocked, if it refuses to install the identity theft systems proposed by the government as well as follow its ideological control.

    - Australia and also Britain want to ban encrypted communications, as long as technology doesn't make it easier for them to spy on people. Secure software is literally being labeled as a crime!

    - Germany recently passed NetzDG, a law allowing the government to fine social media if it doesn't effectively silence its users and censor speech deemed illegal by the state.

    - Russia (like China) just decreed that using VPN software or TOR is illegal, literally criminalizing computer technology. You can now be arrested for simply owning or programming free software.

    - The European Union continues discussing link taxes and censorship machines. They want every website allowing users to upload content to install government software that filters for copyright, and creators should request licenses from corporations or institutions to even be allowed to upload anything on the internet!

    - The US has taken away privacy protections and given ISP's the right to sell your data, wiped out Net Neutrality protections, and are now using sex trafficking as an excuse to go after free speech directly via SESTA / FOSTA.

    We need to acknowledge what is happening and fight back. This is clearly a well planned and well organized movement, and the forces behind it likely amplified fears of terrorism / nazis / porn / more in their attempt to erode the fundamental freedoms we've had for decades. We must act immediately and put a stop to their plans, they're clearly going for a dystopian future here!

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

  • icon
    ECA (profile), 23 Feb 2018 @ 12:56pm

    How many laws...

    Are on the books,
    NOT enforced..
    Unless someone wants to be a PAIN IN THE BUTT, and enforce something in a way that is Obtuse..

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


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