SESTA's Sponsors Falsely Claim That Fixing SESTA's Worst Problem Harms Hollywood

from the say-what-now? dept

Earlier today, in discussing a long list of possible fixes for SESTA, we noted that the only one that even has a remote chance (i.e., the only fix that actually has the potential of being considered by the Senate) is Senator Wyden's amendment, which is designed to solve the "moderator's dilemma" issue by clarifying that merely using a filter or doing any sort of moderation for the sake of blocking some content does not automatically append liability to the service provider for content not removed. Senator Portman -- the sponsor of the bill -- has insisted (despite the lack of such language in the bill) that this is how SESTA should be interpreted. Specifically, Portman stated that SESTA:

...does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.

Except, that's not what the bill actually says. Which is why the language in the Wyden amendment is so important. It basically adds into the law what Portman pretends is already there.

Thus, you would think that Portman and the other Senators backing SESTA should also support the Wyden amendment. They do not. Senator Richard Blumenthal -- who has spent years attacking the internet, and who has already stated that if SESTA kills small internet businesses he would consider that a good thing -- is opposed to the amendment, and sent out a letter supposedly co-signed by other SESTA supporters:

Senators Blumenthal, McCaskill and the other bipartisan sponsors of SESTA oppose the Wyden amendments. These amendments threaten to derail the bill and they would make it even more difficult than current law to hold websites that sexually traffic minors like Backpage.com accountable….The safe harbor amendment would provide websites like Backpage.com with even stronger legal protections than they enjoy today. It also has the potential to disrupt other areas of the law, such as copyright protections. This “bad Samaritan” amendment is not a clarification or a protection for good actors–it is an additional tool to protect traffickers and illegal conduct online.

Here's the problem with that. Almost everything stated above is 100% factually wrong. And not just a little bit wrong. It's so wrong that it raises serious questions about whether Blumenthal understands some fairly fundamental issues in the bill he's backing. Professor Eric Goldman has a pretty concise explanation of everything that's wrong with the statement, noting that it -- somewhat incredibly -- shows that SESTA's main sponsors don't even understand the very basic aspects of CDA 230, as they insist on changing the law.

There are at least three obvious problems with this email. First, the amendment would indeed protect good actors because it would eliminate the Moderator’s Dilemma. The authors of this email still don’t understand, or have decided to ignore, the Moderator’s Dilemma. Second, the proposed amendment would not help Backpage–at all. The Senate Investigative Committee report highlighted voluminous facts about Backpage’s knowledge, so I can’t see how Backpage’s purported filtering would come up in any SESTA/FOSTA enforcement.

Third, the email indicates that the amendment “has the potential to disrupt other areas of the law, such as copyright protections.” This is where the screen freezes, the record scratches, and the narrator says in a deadpan, “No, it wouldn’t.” Section 230(e)(2) expressly carves out “intellectual property” claims–including copyright–from Section 230’s coverage. Anyone with even a basic understanding of Section 230 knows this. Yet, the sponsors, on the eve of a decisive vote with monumental stakes for Section 230, appear to be demonstrating a fundamental misunderstanding of what Section 230 says and does. That is very, very confidence-rattling.

Worse, the email has it precisely backwards. The amendment would HELP, not DISRUPT, copyright protection efforts. If services stuck in the Moderator’s Dilemma decide to turn off proactive moderation efforts, that will include turning off copyright filtering. In other words, SESTA/FOSTA may have the unwanted consequence of encouraging Internet services to do LESS copyright filtering. (This is just one of many examples of my claim that SESTA/FOSTA may counterproductively increase anti-social content). The amendment would fix that by not holding their copyright filtering efforts against Internet services for sex trafficking or prostitution promotion purposes, i.e., by filtering for copyright, the Internet services won’t fear that a court will ask why their filters missed promotions for sex trafficking or prostitution. So if Congress wants to avoid “disrupting” efforts to combat online copyright infringement, the amendment is essential.

This isn't a matter of differing opinions. This is the main backers of a bill to drastically change CDA 230 insisting that (1) their bill does something it does not and (2) a fix to their bill that would bring it into line with what they claim their bill does... actually does a bunch of things it absolutely does not.

At this point, you have to start wondering what the hell is happening in the Senate, and in particular in Senator Blumenthal's office. He is not just doing a big thing badly -- he is gleefully spouting the exact opposite of basic facts about both the existing law, and the bill he sponsored. I know that politicians aren't exactly known for their honesty, but he seems to be taking this to new levels -- and causing massive harm in the process.


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  1. identicon
    Anonymous Coward, 19 Mar 2018 @ 9:30am

    And

    ... and that considered a bad thing??!

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

  2. icon
    PaulT (profile), 19 Mar 2018 @ 9:30am

    Even if it actually did significantly harm Hollywood, would you rather have the major studios harmed or the victims of sex trafficking? Hell, there's a fair argument that the activities of some of the studios is leading to some of the trafficking in the first place! I'd bet that the fallout from Weinstein's activities have revealed some involvement in some way, at the very least.

    For an issue that's so regularly been based on emotional rather than factual arguments, it does seem like a strange tactic to try getting people to root for the major corporations here. I'd love to think it's because they've finally realised that they're being called out on how much it would harm actual victims if passed, but I'm not confident that's actually getting said outside of sites like this.

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

  3. identicon
    Anonymous Coward, 19 Mar 2018 @ 9:39am

    ..does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.

    Except if they do that manually, they have actual knowledge of what is on the site.

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

  4. identicon
    Anonymous Coward, 19 Mar 2018 @ 9:48am

    the whole aim of this bill is to enhance what Hollywood and the entertainment industries want, another notch in the 'we want total control of the Internet' and the thick fuckers in the Senate are more concerned with ensuring that they continue to do exactly as told by those industries and screw up the Internet for everyone else, in exchange for campaign contributions! how did you ever get elected and then have the audacity to vote on things, let alone propose bills when you have less understanding of the subject than an Amoeba? unbelievable!!

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

  5. icon
    Anonymous Anonymous Coward (profile), 19 Mar 2018 @ 10:24am

    In favor of harming Hollywood

    Not that this bill would actually harm Hollywood, which I would be in favor of, I would prefer that they do it in more explicit manners.

    1) Revert copyright to its original 14 years and allow one 14 year extension if they pay a significant fee, at the appropriate time, and if they don't...automatic public domain.

    2) Enforce accounting rules that are used by the rest of business, also known as General Principals of Accounting. This would devastate their current business model, but bring some sense to payments to those creators who deserve it.

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

  6. identicon
    Anonymous Coward, 19 Mar 2018 @ 11:05am

    Re: In favor of harming Hollywood

    I think those are both too sensible to be enacted today

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

  7. identicon
    Anonymous Coward, 19 Mar 2018 @ 11:25am

    Certainly sounds as though SESTA's worth problems are the key features requested by Hollywood. This is another over reaching hammer to prop up the legacy entertainment industry by giving them tools to harm third parties.

    Why do we need them again?

    Let the legacy firms collapse under their own weight and empower innovators to compete in this space to bring entertainment at least into the 2000s, if not all the way to 2018.

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

  8. identicon
    Anonymous Coward, 19 Mar 2018 @ 12:22pm

    It's darkly hilarious hos sex trafficking is less of an issue for Hollywood than imaginary theft.

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

  9. identicon
    Anonymous Coward, 19 Mar 2018 @ 12:29pm

    Re:

    And in the end they will never get total control of the Internet and we must not let them screw up the Internet for everyone else.

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

  10. identicon
    Anonymous Coward, 19 Mar 2018 @ 12:49pm

    Re:

    Those magnates have got to get their entertainment from someone young and good looking.

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

  11. identicon
    Anonymous Coward, 19 Mar 2018 @ 6:36pm

    Well, of course it harms Hollywood. After all, they tried to so hard, bless them, to shove a SOPA equivalent down our throats...

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

  12. identicon
    Anonymous Coward, 21 Mar 2018 @ 5:17am

    "[...] harms Hollywood" makes SESTA sound like a good thing.

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


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