Can SESTA Be Fixed?

Legal Issues

from the will-it-be-fixed? dept

It appears that sometime this week (or even possibly today), the Senate is unfortunately likely to vote (perhaps by an overwhelming margin) for SESTA, despite the fact that it’s a terribly drafted bill which no one can explain how it will actually stop sex trafficking. Indeed, it’s a bill that many victims advocates are warning will not just make problems worse, but will put lives in danger. And that’s leaving aside all of the damage it will do to free speech and tons of websites on the internet.

Much of this could have been avoided if anyone in Congress were actually interested in understanding how the internet worked, and how to write a bill that actually addressed problems around sex trafficking — rather than buying into a false narrative (pushed mainly by Hollywood) that the liability protections of CDA 230 were magically responsible for sex traffickers using the internet. Two academics who are probably the most knowledgeable experts on intermediary liability, Daphne Keller at Stanford and Eric Goldman at Santa Clara University, have each posted thoughts on how to “salvage” SESTA. If Congress were serious, it would listen to them. But that’s a big “if.”

Let’s start with Keller’s suggestions that she helpfully put into a Twitter thread:

First up, she takes on the problematic “knowledge” standard used in SESTA/FOSTA. Again, a key part of the bill is that internet sites can become liable if they have “knowledge” of sex trafficking activity that is done on the platform. But what the hell is meant by “knowledge”? In other parts of the law, even when it’s more spelled out, there are examples of legal cases lasting years while everyone wrangles over what “knowledge” means. In the copyright context, Viacom sued YouTube and were in court for more than half a decade, with much of that being over the simple question of whether knowledge meant “specific” knowledge or “general” knowledge. SESTA could solve many of its problems if it made its knowledge standard clear — and, as Keller notes, one that wouldn’t require “teams of lawyers.”

Indeed, this is perhaps the largest problem with SESTA (and may also doom the bill in court). Prosecutors and the DOJ have already raised concerns about the standards in the bill, and even the politicians supporting it toss out very, very different definitions. Senator Rob Portman has claimed it requires “intent.” Meanwhile, Rep. Cathy McMorris Rodgers claims that the standard is “knowingly turning a blind eye.” That’s… extremely different. Senator Cory Booker claims its “a high standard” that requires “proving beyond a reasonable doubt.” All of those mean very different things, and when you have the politicians backing the bill all spouting nonsense, and the law itself doesn’t clarify, you’re making a huge mess.

Keller’s second suggestion is to add in real and meaningful penalties for bad faith accusers as well as an appeals process for the accused. This is also a big deal. Again, looking at the DMCA, we’ve talked about how the one part of that law dealing with bad faith accusations is basically toothless and almost never useful. And thus, the DMCA is abused all the time. We have all those lessons to learn from — and it appears that Congress is ignoring them.

Up next would be a clear statement that the law does not require monitoring all speech. Such a mandatory monitoring system would have tremendous First Amendment issues — but unfortunately it seems likely that some may read the bill to require mandatory filtering (oddly, others will read it as saying you shouldn’t use filters at all to avoid knowledge — and that dichotomy of results should just emphasize how poorly the bill was drafted).

Fourth, Keller suggests making it clear that merely monitoring should not be deemed as knowledge (this could be seen as related to clarifying the knowledge standard as well). On that front, there may be an amendment on the table that could help (see below…).

Fifth: the bills should make it clear that it applies to service providers that are end user facing, rather than further up the stack. Again, here’s a lesson that we’ve learned from takedowns in the copyright space. As Hollywood got more and more upset about various things online it continued to move up the stack beyond services to hosting companies, data centers, registrars and even ICANN itself. We shouldn’t allow SESTA to allow for the same nonsense.

Finally, Keller suggests that if we must go through with such a bad bill, there should be some requirements on transparency about the impacts for both tech platforms and government agencies, so that we can look back on the bill and determine what it did — both good and bad.

Will Congress take any of these steps? It doesn’t look like it.

As for Goldman, his post focuses on an amendment that Senator Wyden is offering. Last I heard, it appears that the Senate may actually consider this amendment. And it’s an amendment similar to one that Goldman himself suggested — with a very modest addition to SESTA clarifying the whole question of does “monitoring” equal “knowledge.” Specifically the amendment would add the following language:

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal or civil liability of the provider or user for any material that the provider or user has not removed or restricted access to.

As Goldman notes, this one amendment would fix the worst problems of SESTA (while still leaving in place plenty of others). If you at least support making SESTA less horrible, he suggests calling your Senators and letting them know:

If you think this is a meritorious fix to a bad bill, then *immediately* call your Senators (you have 2, remember!) and tell them:

1) You oppose SESTA/FOSTA because it?s not clear the law actually helps sex trafficking victims; and

2) You want your Senator to support Sen. Wyden?s proposed content moderation amendment because it ensures online services will keep being the first line of defense in the fight against sex trafficking.

Note 1: This issue could be moot as early as Monday afternoon, so literally CALL NOW.

Note 2: CALL, not email. The EFF has made it easy for you to do.

It seems quite likely the bill is going to pass very soon and then get signed into law. The fact that there are simple and reasonable ways to improve on the bill, which Congress is blatantly ignoring, is problematic.

Filed Under: cda 230, daphne keller, eric goldman, fosta, intermediary liability, knowledge, knowledge standard, moderator's dilemma, rob portman, ron wyden, sesta