Wall Street Journal Explains Why SESTA Is A Terrible Idea And Is Unnecessary

from the didn't-see-that-coming dept

Here's a bit of a surprise. The Wall Street Journal's Editorial board has come out vehemently against SESTA. The reason this is surprising is that much of the push for SESTA has been a fairly obvious attack on internet companies, especially Google, by trying to undermine CDA 230. And the Wall Street Journal has spent years attacking Google at every opportunity.

But, this time, the editorial gets the story right -- highlighting that the effort is clearly being driven by anti-Google animus, even though it will create all sorts of other problems (problems that Google can mostly survive easily). However, the most important part of the editorial details why SESTA is not actually needed. Throughout the process, the backers of the bill always point to Backpage.com as the reason the bill is necessary. As we pointed out, when the bill was first released, nearly every quote from Senators backing it mentioned how it was necessary to take down Backpage.

But what none of them want to talk about is that we don't need this law to take down Backpage. As the WSJ report notes, Backpage is currently in court in Massachusetts where it seems likely that a judge will say that it's not protected by CDA 230, because of recent evidence showing that it was a more active participant in creating advertisements involving trafficking. Earlier ruling saying that Backpage was protected by CDA 230 did not have the evidence revealed later that Backpage actually was an active participant:

Yet neither the California nor federal judge was presented with the evidence in the Senate report that Backpage had edited ads to elude law enforcement. And in light of new evidence, a federal judge in Boston is considering allowing another case against Backpage to proceed.

At the very least, you have to wonder why Congress can't wait to see what happens in Boston.

Separately, it's widely been reported that the DOJ has begun a grand jury investigation into Backpage. And, despite what people will tell you, nothing in Section 230 prevents the Justice Department from going after federal crimes (including sex trafficking). The WSJ points this out as well:

Justice last year initiated a grand jury investigation into Backpage’s sex-trafficking, and courts may correctly decide the case in due course.

And that leaves out two other points that show that SESTA is not needed to take down Backpage. First, two years ago, Congress passed another law, the SAVE Act, which was also clearly targeted at Backpage, making it illegal to advertise sex trafficking. And, for reasons no one has explained, that law has never actually been used. Throughout the entire SESTA process, politicians have acted as if the SAVE Act never even happened. No one has discussed why we need another law on top of that one, or why the SAVE Act has not been used, even though it targets the same issue in a more targeted fashion.

And the biggest reason of all that we don't need SESTA to take on Backpage: Backpage has already shut down its adult ads section, due to the mounting pressure from politicians, lawsuits and law enforcement. The only thing SESTA adds to Backpage is even more ways to pile on after the fact. It's hard to see how that is necessary at all.

Either way, as the WSJ Editorial points out, SESTA seems totally unnecessary to deal with the problem that everyone is claiming it's meant to help... but it would cause lots and lots of other problems:

Most website operators are aware that people use their platforms for nefarious purposes, but ferreting out criminal activity isn’t always easy. While algorithms can help, human judgment is often necessary. Google plans to hire 10,000 employees to review YouTube videos for inappropriate content.

Revising Section 230 for sex-trafficking could open up a Pandora’s box. Small websites might create overly restrictive screens that filter out non-objectionable content such as ads to help sex-trafficking victims. This could also make it harder to ask other countries to provide internet companies legal immunity for user content.

The WSJ editorial actually underplays the so-called "moderator's dilemma" created by SESTA. As Eric Goldman has explained multiple times, under the wording of SESTA, most websites are encouraged to take one of two extreme positions, neither of which are helpful. One is that if they moderate, they will become overly cautious, quick to take down anything that might put them at risk, or for which they received a notice. So that could include (as the editorial notes) content designed to help sex-trafficking victims, or it might just be anything that mentions certain keywords. Or maybe it'll be anything that someone flags as "sex-trafficking content" just because they want it gone (as we see with tons and tons of DMCA notices).

The other option in the moderator's dilemma is not moderate at all. Since SESTA has a "knowledge" standard, the best way to avoid liability is not to have any knowledge of what people are doing -- and the best way to do that is not to moderate at all. What's quite incredible to me is that the backers and supporters of SESTA refuse to acknowledge that as CDA 230 is currently written it encourages moderation, and SESTA removes that encouragement. In other words, in an effort to get websites to stop allowing sex trafficking, they're actually encouraging more sites to look the other way deliberately.

One more point that the WSJ editorial board gets right: this is going to lead to a ton of lawsuits. And almost all of those will be misdirected: suing the company operating a website for actions of its users, rather than suing the users. Given that even the anti-internet Wall Street Journal understands the many problems of the bill, why is it that so many in Congress refuse to deal with it?


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  • icon
    Ninja (profile), 5 Mar 2018 @ 10:21am

    "Given that even the anti-internet Wall Street Journal understands the many problems of the bill, why is it that so many in Congress refuse to deal with it? "

    I assume you haven't been reading the comments here, have you? (j/k)

    It's not about facts and evidence, it's all about perception. I perceive it as being good and generally aligned to my opinions/voters, thus it's a good thing. Cognitive dissonance be damned.

    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, 5 Mar 2018 @ 10:55am

      Re:

      Well said!

      Sadly when I say the same thing around here on "other" issues people get upset!

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

  • icon
    That One Guy (profile), 5 Mar 2018 @ 10:30am

    Was that a rhetorical question?

    Given that even the anti-internet Wall Street Journal understands the many problems of the bill, why is it that so many in Congress refuse to deal with it?

    'It is difficult to get a politician to understand something, when their ability to grandstand on a bill for cheap PR points depends on their not understanding it.'

    Addressing the major and multiple flaws with their bill would gut the justification for it, leaving them struggling to explain why it's necessary and why they think the collateral damage it will cause are acceptable trades for no real gain.

    Since that would make it more difficult to grandstand, they continue to play deaf and dumb.

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

    • icon
      orbitalinsertion (profile), 6 Mar 2018 @ 1:39pm

      Re: Was that a rhetorical question?

      They may have thought they might get cheap PR points, but that isn't really happening, and it is pretty damn clear by now. Job fail.

      I guess that goes under "we made so much noise that now we have to follow through even if it is a gunshot to the foot".

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

  • identicon
    Anonymous Coward, 5 Mar 2018 @ 10:58am

    As we pointed out, when the bill was first released, nearly every quote from Senators backing it mentioned how it was necessary to take down Backpage.

    Remember, folks: The same people who are wiling to take down the entire internet just to stop one website are the very same people who are granted the sole power to declare war in the United States.

    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, 5 Mar 2018 @ 11:09am

      Re:

      And all voted in by people that think they are not responsible for the people they voted in and get angry when you tell them that!

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

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 12:27pm

      Re:

      Apparently Congress is no longer needed to wage war, they gave that away decades ago.

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

  • identicon
    Anonymous Coward, 5 Mar 2018 @ 11:06am

    Moderator's Dilemma

    The WSJ editorial actually underplays the so-called "moderator's dilemma" created by CDA 230.

    Run this past me again?

    You don't really mean the current version of 47 USC § 230, as enacted by Section 509 of the Telecommunications Act of 1996, and as subsequently amended.

    You just mis-wrote.

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

    • icon
      Mike Masnick (profile), 5 Mar 2018 @ 11:47am

      Re: Moderator's Dilemma

      I did mis-write. It was supposed to say the moderator's dilemma created by SESTA, and the post has now been updated...

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

      • identicon
        Anonymous Coward, 5 Mar 2018 @ 11:51am

        Re: Re: Moderator's Dilemma

        It was supposed to say the moderator's dilemma created by SESTA…

        I think the next sentence shares the same problem. You have now—

        As Eric Goldman has explained multiple times, under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful.

        Shouldn't that next sentence also read, ‘under the wording of SESTA’ ?

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

        • identicon
          Anonymous Coward, 5 Mar 2018 @ 11:54am

          Re: Re: Re: Moderator's Dilemma

          Shouldn't that next sentence also read, ‘under the wording of SESTA’ ?

          Cross-posting strikes again! You beat me to the fix, somewhere about the time I hit the ‘Submit’ button.

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

          • identicon
            Wendy Cockcroft, 6 Mar 2018 @ 5:57am

            Re: Re: Re: Re: Moderator's Dilemma

            This is what I love about Mike and the team. If you point out an error, they acknowledge it then fix it. I wish our resident trolls would do the same instead of doubling down on their ridiculous assertions.

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

  • identicon
    Anonymous Coward, 5 Mar 2018 @ 11:09am

    and the best way to do that is not to moderate at all.

    And not to react to comments in any way, as reacting or responding to comments would show that site staff were reading comments and so gained knowledge.

    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, 5 Mar 2018 @ 11:24am

      Re: CDA 230 is not to be read in isolation as corporatists want, it's a mere part of ALL law which in US must fit with common law.

      There is NO part of CDA that empowers corporations to simply get rich off advertising while ignoring criminal use of "platforms". There's nothing new about "teh internets" such that the same information printed or in physical venues is now magically non-criminal. Nor are "platforms" just able to ignore all and not be liable.

      SURE, though, it's different in obvious areas. But not TOTALLY privileged as Masnick and other corporatists want; they are simply trying to gain the effect of Rights for corporate "persons" yet isolate from ALL responsibility to be GOOD CITIZENS.

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

      • identicon
        Anonymous Coward, 5 Mar 2018 @ 11:44am

        Re: Re: CDA 230 is not to be read in isolation as corporatists want, it's a mere part of ALL law which in US must fit with common law.

        To advocate that the platforms are made responsible is to silence the vast majority of people, including yourself, as that would make the Internet like the print world, something is only published after an editor looks at it, and then gets the copyright assignment. Also that means that a fraction of a percent of people would get anything published, because the editors can only look at a reaction of what is submitted to them.

        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, 5 Mar 2018 @ 11:16am

    So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

    YOU CONTRADICT YOURSELF RIGHT HERE! And expect me to believe your notions?

    Shows that as I've written, CDA -- by the way, do you think that "DECENCY" in the title means its purpose was even to ALLOW rampant filth? -- 230 is an unworkable mess, immunizing vast corporations from common DECENCY. You're as always trying to have everything the corporatist way.

    And as you read it, it's only to shield globalist corporations from liability and give a new Right to totally control speech outlets. Well, Mr Corporation-Uber-Alles, to the extent that CDA 230 empowers corporations to arbitrarily and in advance control the speech of "natural" persons, it's EVIL.

    Just last week, you stated that this middle ground from court decision was measured and right: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- But NOW you're back to all-out corporatism.

    And what's surprising about Wall Street taking pro-corporatist view when must? Did you think they're Populists favoring regulation?

    By the way, in Europe, Google and Facebook are now subject to one hour takedowns for "terrorist" content.

    The tide has turned, and with mega-corporations ever more openly showing their globalist, corporatist, anti-American views, REAL action is likely, even from captive Congress.

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

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 11:20am

      Re: So "under the wording of CDA 230 ...

      REPORTED

      Reason: Excessive subject line length.

      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, 5 Mar 2018 @ 11:28am

        Re: Re: So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

        > REPORTED Reason: Excessive subject line length.

        Thanks! If you kids will just focus on stupid irrelvancies like that, my comments stand out in contrast.

        By the way, the automatic "hiding" of comments is at least much reduced of late, for MINE, so a), you don't even have much of threat, and b) it keeps proving that the hiding all along is under control of an administrator, cause for sure, the rabid hate of me hasn't lessened here.

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

        • identicon
          Anonymous Coward, 6 Mar 2018 @ 12:00am

          Re: rambly subject line

          Alright, lets start with some "stupid irrelvancies". First, there is no reason to put "hiding" in scarequotes, your comments are hidden and can easily be shown again. If they were censored, like you will probably claim, no one could read them and we would not have this discussion. If you don't think its censorship and don't think "hidden" is the right word, let us know what you do think fits.

          On that topic, what are you talking about your comments being not hidden as often lately? All of your comments, that I have seen, have been hidden. If there are unhidden ones, I'll hazard a guess and say they are probably more coherent and less rambling. In that case: good, do more of those and less of the above.

          Now back to the subject. Your abuse of the subject line is not as irrelevant as you claim. I can see what you are doing and I'm sure, I'm not the only one. The subject line gets copied into the subject line of every reply unless the replying poster actively changes it. You abuse that fact to try and sneek your nonsense out of your hidden comment into the viewable area. It acts like a parasite infecting innocent replies. Well either that or your understanding of the purpose of subject lines is even worse than your understanding of law.

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

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 11:21am

      Re: So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

      You really should play outside for awhile.

      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, 5 Mar 2018 @ 11:30am

        Re: Re: So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

        > You really should play outside for awhile.

        GOOD IDEA. In fact, I've much to do, but couldn't resist flailing away at Masnick's pro-corporate notions again.

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

        • identicon
          Anonymous Coward, 5 Mar 2018 @ 11:47am

          Re: Re: Re: So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

          How wrong you are, CDA 230 is what allows individuals to publish their works on platforms owned by the corporations. As such it benefits the Individual by making them, and not the platform, take responsibility for what the individual publishes. Destroy CDA 230 and you benefit the legacy corporations that edit and publish other people works, and take almost all of the income from the works because they control publication.

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

        • identicon
          Anonymous Coward, 5 Mar 2018 @ 5:28pm

          Re: Re: Re:

          Right, like find more hyperlinks to spam?

          Why do you care so much about a website you yourself proudly declare to be insignificant?

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

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 11:32am

      Re: So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

      I think you started going off the rails from "common" and "decency". Both subjective terms no matter how concrete you'd like them defined.

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

    • icon
      Mike Masnick (profile), 5 Mar 2018 @ 11:50am

      Re: So "under the wording of CDA 230, most websites are encouraged to take one of two extreme positions, neither of which are helpful" THEN "as CDA 230 is currently written it encourages [UNHELPFUL] moderation"!

      I mis-stated "under the wording of CDA 230" when I meant "under the wording of SESTA" which I think should have been obvious from the context. It's now been fixed.

      The rest of your comment is, as per usual, nonsense.

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

  • icon
    OA (profile), 5 Mar 2018 @ 12:18pm

    Most of our leaders are persistently irresponsible and unresponsive to the people their supposed to serve. One could argue that the problem is now systemic. In cases like this, under these conditions, we get a result from the intersection of Idle Hands and Power Corrupts problems (plus a third intersection for another comment).

    They have power, they are not using it towards valid responsibilities, but, they want to keep that power. How do they respond to this combination of need and circumstance? Create the illusion of responsibility (much easier and more controllable than the real thing) and attack and/or control the perceived rivals to that power: like the masses and "internet companies".

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

  • identicon
    Anonymous Coward, 5 Mar 2018 @ 12:39pm

    But Google is supporting SESTA, so I'm not sure how you could possibly spin it as an "attack on Google".

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

    • icon
      That One Guy (profile), 5 Mar 2018 @ 1:08pm

      Re:

      Just because they're in a better position to handle the many problems the bill would create, does not mean that they won't suffer from it.

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

      • identicon
        Anonymous Coward, 5 Mar 2018 @ 1:44pm

        Re: Re:

        Why is that really worth bringing up? That is how regulations like this always are. The pro's always out weights the cons for someone.

        Who loses and who wins?

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

        • icon
          That One Guy (profile), 5 Mar 2018 @ 3:19pm

          Re: Re: Re:

          For the life of me I cannot figure out the point of your comment, so could you rephrase it?

          It was worth bringing up to show that just because they may publicly support it does not mean that the bill itself isn't an 'attack on Google', along with many, many other individuals and companies who stand to suffer if it's passed.

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

          • identicon
            Anonymous Coward, 7 Mar 2018 @ 11:31am

            Re: Re: Re: Re:

            So Google is attacking itself, then?

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

            • icon
              That One Guy (profile), 7 Mar 2018 @ 8:34pm

              "I bruised my foot, you LOST yours."

              Ish? Assuming it's not just a short-sighted, boneheaded move by someone high up who figured it would be a good way to score some easy PR for being 'against sex trafficking' and didn't think it through, it's likely a matter of 'Yeah this will be a pain for us to deal with, but it will destroy anyone who might have competed with us who doesn't have our resources, so it's worth the pain.'

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

        • icon
          Toom1275 (profile), 5 Mar 2018 @ 11:29pm

          Re: Re: Re:

          Everybody loses, just some less than others.

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

  • identicon
    Claudia Perkins, 5 Mar 2018 @ 3:32pm

    "And the biggest reason of all that we don't need SESTA to take on Backpage: Backpage has already shut down its adult ads section, due to the mounting pressure from politicians, lawsuits and law enforcement"

    But all the advertising has moved to the dating section, namely the Women For Men category. There are also sex ads in the massage section.

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

    • icon
      That Anonymous Coward (profile), 5 Mar 2018 @ 4:44pm

      Re:

      It is a pity that the LEO's who were working with Backpage & Craigslist found themselves made unwelcome.
      The platforms went above & beyond, helped the LEO's catch the few bad actors, and still got roasted for soundbites.

      Perhaps if we stopped pretending everyone doing SW is damaged in some way & is being forced to do things we could see the trees despite the forest.

      Everyone loves to talk about the handful for girls who want to sue Backpage for a kajillion dollars b/c they got trafficked on there. Except BP didn't groom them, lure them, turn them out. BP isn't required to be the parent to these kids.

      Why has no one ever sued the parents for endangering their children by neglect?
      BP didn't get them the phone/computer.
      BP didn't pay the bill.
      BP didn't have to teach them how to be safe online.
      BP didn't have the right to ask them who they were talking to & what they were doing.
      BP didn't prey on the teenage angst.
      BP didn't promise them they could be free if they ran away.

      Some wanna be pimp did that, but he is poor so we need to sue BP for not protecting the children of parents who were to busy to parent.

      Finding the few cases of actual pimped out kids is made harder because the moral police have all of these imaginary stories in their heads about sex workers.

      This law will harm the internet.
      This law will make it actively HARDER to catch the few wanna be pimps.
      This law will make sex workers much less safe.
      This law does nothing but generate soundbites that look good, but if you look behind them you see the problems.
      This is a law to appease people screaming for them to do something but not caring about the repercussions.

      If we decriminalized sex work for consenting adults Backpage wouldn't be a problem.
      We had several professional sex worker websites, but they were raided "for the children" despite none of them being underage.
      These sites made sure everyone was an adult & a pro.
      These sites allowed the sex workers to flag bad clients.
      Without the cops trying to get grandstanding headlines raiding them, they would have more time to find the few kids forced to perform sex acts.
      Pro sex workers don't want kids doing sex work, they could provide a wealth of information to help... but they are treated like demons who have to be punished.

      But lets break the internet so y'all can ride off on your moral high horse, ignoring the kids you claim to want to protect being moved to darker parts of the web where saving them becomes nearly impossible.

      We saved the kids, so it was all worth it... ignore that darkweb ad offering a 17 yr old to star in a snuff film because she's to old to pull in much cash for her pimp.

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

  • identicon
    Anonymous Coward, 6 Mar 2018 @ 11:45am

    I'm one of the people who wants to see websites liable for third party content. I still *hate* this bill: saying you're only liable *if* you moderate is insane. Seriously, there's no good reason to want to encourage sites to plug their ears and say "I can't hear you!", which is what this bill essentially does.

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

    • identicon
      Anonymous Coward, 6 Mar 2018 @ 12:20pm

      Re:

      >I'm one of the people who wants to see websites liable for third party content.

      In other words you want some editor to approve what you write before it is published. Do you not trust yourself to stay within reasonable bounds in your writing?

      You do realize that you do not need to read what others write if it offends you, which requires you to be selective in the sites you visit.

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


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