As Expected Senate Overwhelmingly Passes Unconstitutional SESTA Bill, Putting Lives In Danger

from the total-failure dept

This was not unexpected, but earlier today the Senate easily passed SESTA/FOSTA (the same version the House passed a few weeks ago) by a 97 to 2 vote -- with only Senators Ron Wyden and Rand Paul voting against it. We've explained in great detail why the bill is bad. We've explained in great detail why the bill won't stop sex trafficking and will actually put sex workers' lives in more danger, while also stomping on free speech and the open internet at the same time (which some see as a feature rather than a bug). The Senate declined to put any fixes in place.

Senator Wyden, who had originally offered up an amendment that would have fixed at least one big problem with the bill (clarifying that doing any moderation doesn't subject you to liability for other types of content) pulled the amendment right before the vote, noting that there had been a significant, if dishonest, lobbying effort to kill those amendments, meaning it had no chance. He did note that because of the many problems of the bill, he fully expects that these issues will be revisited shortly.

As for the many problems of the bill... well, they are legion, starting with the fact that multiple parts of the bill appear to be unconstitutional. That's most obvious in the "ex post facto" clause that applies the new criminal laws to activities in the past, which is just blatantly unconstitutional. There are some other serious questions about other parts of the bill, including concerns about it violating the First Amendment as well. It seems likely that the law will be challenged in court soon enough.

In the meantime, though, the damage here is real. The clearest delineation of the outright harm this bill will cause can be seen in a Twitter thread from a lawyer who represents victims of sex trafficking, who tweeted last night just how much damage this will do. It's a long Twitter thread, but well worth reading. Among other things, she notes that sites like Backpage were actually really useful for finding victims of sex trafficking and in helping them get out of dangerous situations. She talks about how her own clients would disappear, and the only way she could get back in touch with them to help them was often through these platforms. And all that will be gone, meaning that more people will be in danger and it will be that much harder for advocates and law enforcement to help them. She similarly notes that many of the groups supporting SESTA "haven't gotten their hands dirty in the field" and don't really understand what's happening.

That's true on the internet side as well. Mike Godwin highlights the history before CDA 230 was law and the kinds of problems that come about when you make platforms liable for the speech of their users.

In Cubby, a federal judge suggested (in a closely reasoned opinion) that the proper First Amendment model was the bookstore – bookstores, under American law, are a constitutionally protected space for hosting other people’s expression. But that case was misinterpreted by a later decision (Stratton Oakmont, Inc. v. Prodigy Services Co., 1995), so lawyers and policy advocates pushed to include platform protections in the Telecommunications Act of 1996 that amounted to a statutory equivalent of the Cubby precedent. Those protections, in Section 230, allowed platform providers to engage in certain kinds of editorial intervention and selection without becoming transformed by their actions into “publishers” of users’ content (and thus legally liable for what users say).

In short, we at EFF wanted platform providers to be free to create humane digital spaces without necessarily acquiring legal liability for everything their users said and did, and with no legal compulsion to invade users’ privacy. We argued from the very beginning, about the need for service providers to be just, to support human rights even when they didn’t have to and to provide space and platforms for open creativity. The rules we worked to put into place later gave full bloom to the World Wide Web, to new communities on platforms like Facebook and Twitter and to collaborative collective enterprises like Wikipedia and open-source software.

Meanwhile the Senators who passed the bill will completely forget about all of this by next week, other than to pat themselves on the back and include 3 seconds in their next campaign ad about how they "took on big tech to stop sex trafficking." And, of course, people in Hollywood are laughing at how they pulled a fast one on the internet, and are already strategizing their next attacks on both CDA 230 and DMCA 512 (expect it soon).

None of those celebrating realize how much damage they've actually caused. They think they've "won" when they really did astounding levels of damage to both victims of sex trafficking and free speech in the same effort.


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  • identicon
    Anonymous Coward, 21 Mar 2018 @ 6:10pm

    Does anyone know any .gov websites with lightly moderated forums on them?

    Uhh, asking for a friend who has a lot of unsavory things to post.

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

  • icon
    That One Guy (profile), 21 Mar 2018 @ 6:25pm

    Handy list

    So there's 97 people who are in favor of screwing over the internet, including victims of sex trafficking, so long as it gets them a bit of PR and/or makes hollywood happy.

    There's selling out, and then there's doing so in a way that makes it crystal clear where your loyalties lie and how low you're willing to sink for your own gains. These individuals, and the ones in the house that voted in favor have more than managed the latter.

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

    • identicon
      Anonymous Coward, 21 Mar 2018 @ 6:46pm

      Re: Handy list

      There's selling out, and then there's doing so in a way that makes it crystal clear where your loyalties lie and how low you're willing to sink for your own gains. These individuals, and the ones in the house that voted in favor have more than managed the latter.

      Make sure it translates into lost votes, and a PR nightmare for them. That's the only way to get their attention.

      This shouldn't be too hard to do, given that the voting blocks are changing, and the internet generations are increasing in number. Let it be known to all politicians that if you <omitted> with the internet, you'll pay the price for it come election day.

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

      • identicon
        Anonymous Coward, 21 Mar 2018 @ 8:04pm

        Re: Re: Handy list

        Puerto Rico nightmares just aren't that scary to most of us.

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

      • identicon
        David, 22 Mar 2018 @ 4:16am

        Re: Re: Handy list

        Make sure it translates into lost votes, and a PR nightmare for them. That's the only way to get their attention.

        There is no such thing as bad publicity. Point in case: the current presidency.

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

      • identicon
        GEmont, 22 Mar 2018 @ 9:02am

        Re: Re: Handy list

        "...pay the price for it come election day."

        This sort of thing never fails to amuse.

        These billionaires; who you say will "pay the price", have just turned the internet into a brick and yet you folks still believe they would never, never, tamper with the American Election system.

        The T. Rump Gang has to be laughing its collective ass off, reading your naive patriotic drivel.

        "What me worry!"
        "Elections will save us all on Voting Day!"

        No wonder Fascism is so successful.

        ---

        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, 21 Mar 2018 @ 7:22pm

      Techdirt wrong and losing on every front for 20 years now!

      Unable to learn! Doing same thing over and over is definition of what?

      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, 21 Mar 2018 @ 6:51pm

    Sheesh. Bookstores NEVER advertised prostitutes!

    Other than lies, all you have is FUD.

    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, 21 Mar 2018 @ 7:04pm

    You think it's good Rand Paul is with you in the 2 percent?

    Rand Paul says Mueller Probe Becoming ‘Very Very Partisan,’ ‘Witch Hunt’.

    What a crackpot.

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

    • identicon
      Anonymous Coward, 21 Mar 2018 @ 8:07pm

      Re: You think it's good Rand Paul is with you in the 2 percent?

      I disagree. Although Trump is probably guilty of many things, I have a hard time believing that he'd be stupid enough to actually ask Russian government agents to hack servers and commit other illegal acts in order to tamper with the election -- which is what the Mueller Probe is supposed to be specifically and exclusively investigating.

      Having found zero evidence after more than a year of investigating, it's starting to follow the path of Bill Clinton's Whitewater probe, which turned into an open-ended witch hunt that lasted eight years and only ended when Clinton finally left office.

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

      • icon
        nasch (profile), 21 Mar 2018 @ 9:03pm

        Re: Re: You think it's good Rand Paul is with you in the 2 percent?

        I have a hard time believing that he'd be stupid enough to actually ask Russian government agents to hack servers and commit other illegal acts in order to tamper with the election

        That's exactly what he did, and publicly. He exhorted Russian hackers to hack into Clinton's servers, and obtain and release emails in order to damage her campaign.

        Having found zero evidence after more than a year of investigating

        How do you have access to the details of the Mueller investigation?

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

      • identicon
        Anonymous Coward, 22 Mar 2018 @ 9:09am

        Re: Re: You think it's good Rand Paul is with you in the 2 percent?

        "I have a hard time believing that he'd be stupid enough to actually ask Russian government agents to hack servers and commit other illegal acts in order to tamper with the election"

        Many of us saw him do exactly that on national television, where were you?

        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, 21 Mar 2018 @ 7:43pm

    Streisanded this to death, couldn't just shut up.

    Would have gone away but no, you had to bitch and moan all over Techdirt every day so pols knew how to make things worse.

    Way to go, Masnick. You suck at PR.

    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, 21 Mar 2018 @ 7:52pm

    Predicting DOOM beyond all reason. A boy who cries werewolf!

    You're in a panic solely because "platforms" corporations might have to do a little more "policing" and lose a little "revenue".

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

    • icon
      TKnarr (profile), 21 Mar 2018 @ 8:06pm

      Re: Predicting DOOM beyond all reason. A boy who cries werewolf!

      No, it's that under the new law platforms will do less policing or more likely no policing at all simply because that's the only way to avoid being run out of business by lawsuits and criminal charges. Such an improvement.

      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, 21 Mar 2018 @ 7:53pm

    it's not unconstitutional, won't put lives in danger

    lol you're eating your own dogfood, masnick

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

    • identicon
      Anonymous Coward, 21 Mar 2018 @ 8:09pm

      Re: it's not unconstitutional, won't put lives in danger

      Wow, that sure explained everything. Your post is the internet equivalent of plugging your ears and saying "No it isn't." Provide some kind of support for your argument or don't even bother posting. There is a reason why he has a popular website and you do not. Hint, it isn't your stellar fresh breath.

      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, 21 Mar 2018 @ 8:01pm

    More you say "sex traffic victims", more you mean corporations.

    I expect it to do much GOOD in controlling mega-corporations.

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

  • identicon
    Anonymous Coward, 21 Mar 2018 @ 8:20pm

    feeding the trolls

    Is it my imagination, or has a certain troll taken over Techdirt's comment section?

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

    • icon
      That One Guy (profile), 21 Mar 2018 @ 9:18pm

      Re: feeding the trolls

      You know an article has really hit a nerve when the usual gang/individual really ramps up the personal attacks and insults.

      What would make it extra funny would be if they think that anyone is fooled by the multiple posts by 'multiple' people, rather than seeing it for what it is, just more deranged ranting by TD's most dedicated troll/stalker.

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

      • identicon
        Anonymous Coward, 22 Mar 2018 @ 11:00am

        Re: Re: feeding the trolls

        Yeah last we I think the troll forgot to change accounts before posting a confirming reply.

        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, 21 Mar 2018 @ 8:23pm

    How did we survive before CDA exceptions for teh internets?

    Since YOU predict disaster of Biblical proportion, approaches certain will be only to the good.

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

  • identicon
    Anonymous Coward, 21 Mar 2018 @ 8:27pm

    wow, why all the dissenting opinions here tonight... it's almost as if there is some paid group of lackeys that go around commenting on articles that are critical of SESTA and all they can do is attack the author but provide absolutely nothing in the way of supporting their opinion.

    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, 21 Mar 2018 @ 8:30pm

    blaming everyone but the fat corps with billions

    typical masnick doom porn

    he must be fun at parties, all like oh no google's gonna be hurt! and everbody lols

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

  • identicon
    Anonymous Coward, 21 Mar 2018 @ 8:40pm

    My the trolls are out in full swing today. Must be spring break.

    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, 21 Mar 2018 @ 8:54pm

    Lit your own hair on fire again. Sad. -- But FUNNY.

    Techdirt is losing sanity faster than losing readers.

    Go away before you must.

    You're going to wish for a "right to be forgotten"!

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

    • identicon
      Anonymous Coward, 21 Mar 2018 @ 9:03pm

      Watching you go from semi annoying commenter with some moderately ok ideas, to drooling conspiracy themed mongoloid over the past couple of years. Has been kind of entertaining, in a watching a car crash in slow motion kind of way.

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

  • identicon
    Anonymous Coward, 21 Mar 2018 @ 9:27pm

    There once was an out of the blue
    Who hated the process of due
    Each hooker he'd paid
    Was DMCAed
    And shoved up his ass with a screw

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

  • identicon
    coward (anon), 21 Mar 2018 @ 10:43pm

    Already having a chilling effect

    CityVibe seems to have taken itself off-line. Might just be a coincidence, we'll have to see if they come back.

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

  • icon
    discordian_eris (profile), 21 Mar 2018 @ 11:20pm

    "None of those celebrating realize how much damage they've actually caused."

    BS. Many of them know exactly what the repercussions will be. Some of them will consider it, not a feature, but the feature of this bill. Some are sociopathic and don't care. Some simply don't care because their vote shows they are tough on crime and were 'helping' the children. The rest just voted they way the were paid to.

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

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 12:09am

    If you own property in Silicon Valley, sell now. Tech companies will get smart and move their entire operations, servers and all, outside the United States, where they will not be subject to this law.

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

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 12:54am

    How long before some grandstanding Attorney General brings a case against Reddit or 4chan?

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

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 1:53am

      4chan is in Canada

      4chan is in Canada, and is, therefore, not subject to United States laws.

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

      • identicon
        Anonymous Coward, 22 Mar 2018 @ 3:13am

        Re: 4chan is in Canada

        Some Attorney Generals consider that not as a legal issue, but a challenge...

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

        • identicon
          Anonymous Coward, 22 Mar 2018 @ 3:33am

          Re: Re: 4chan is in Canada

          4chan is in Canada, so they only have to obey Canadian laws.

          Unless their servers are in the United States, they are not subject to USA laws.

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

          • identicon
            Anonymous Coward, 22 Mar 2018 @ 7:09am

            Re: Re: Re: 4chan is in Canada

            Just wait for the CLOUD act to go through.

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

          • icon
            An Onymous Coward (profile), 22 Mar 2018 @ 8:47am

            Re: Re: Re: 4chan is in Canada

            We've already witnessed legal enforcement cross international boundaries. Being in another country is no guarantee of safety any more.

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

            • identicon
              Anonymous Coward, 22 Mar 2018 @ 12:29pm

              Re: Re: Re: Re: 4chan is in Canada

              If you are referring to Kim Dotcom, his mistake was having servers in the United States.

              If none of his servers had been in the United States, he would not have been subject to prosecution here.

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

              • identicon
                Anonymous Coward, 22 Mar 2018 @ 3:25pm

                Re: Re: Re: Re: Re: 4chan is in Canada

                Don't forget Canada's court trying to rule for the world or the Microsoft case.

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

              • identicon
                Wendy Cockcroft, 23 Mar 2018 @ 7:05am

                Re: Re: Re: Re: Re: 4chan is in Canada

                Except the prosecution is not moving forward since they haven't got a case and don't want to admit it. While I'm not a fan of Dotcom I do believe in due process. That whole case has been a dog's dinner in which no one but Ira Rothken came out looking good.

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

  • identicon
    Daydream, 22 Mar 2018 @ 4:00am

    You know...I think the politicians do this, because they're afraid.

    They know, though they won't be heard saying it, that their America is corrupt. Police can kill and rob with impunity, corporations can file frivolous suits to seize everything you own, banks rig things so that everything you earn goes to them.
    The only way to be safe in America is to be rich and famous, so you can hire lawyers, get your side out, make yourself big and dangerous to touch. Like a pufferfish.

    So, these politicians don't govern responsibly, they act in the interests of their own survival. They take money and job offers under the table from corporations, do things to make the banks and police and other 'big and dangerous' see them as friends, all in the name of not ending up a wage slave or a victim of police brutality.

    But, it's the laws they pass, the blind-eyes they turn, that enables this twisted, corrupt, only-the-rich-are-free country. If they did their jobs right, they could retire to safe jobs, knowing they can trust the police and banks and seek remedies when they're wronged. So why are they building their own trap?
    I can only assume a variation of the prisoner's dilemma; if they stand up and say 'no', but no-one stands with them, they'll gain nothing and only make themselves a target. Better to just keep their heads down. Every single senator might want to slap down police brutality and do things right, but at the same time each one thinks the other senators are in it for the money and will never support 'doing right', so they follow the crowd to avoid being picked out as a 'troublemaker'.

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

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 5:57am

      Re:

      so they follow the crowd to avoid being picked out as a 'troublemaker'.

      Not all of them..

      with only Senators Ron Wyden and Rand Paul voting against it

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

      • identicon
        Anonymous Coward, 22 Mar 2018 @ 11:09am

        Re: Re:

        Does anyone know how the other senators and politicians regard Ron Wyden?

        Like is he just ignored or laughed off as a "special" senator? Do people respect him and his opinions?

        From what I have seen, it seems when Wyden states something or asks a question it is because there is a good reason and others should pay attention to the details.

        Yet on the latest round of issues it's like the other politicians just ignore him.

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

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 6:29am

    That slide right into hell...

    just got a little faster...

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

  • identicon
    GEMont, 22 Mar 2018 @ 8:50am

    The rapid decline of the American Dream - waking up is a bitch.

    "...damage to both victims of sex trafficking and free speech..."

    Under a fascist government, victims of sex trafficking are an exploitable resource and free speech, well, nothing is free under fascism and speech among the herd, being dangerous to those who profit from secrecy and deception, always needs to be stifled as much as possible.

    This was a fully successful move by the conquerors of America, and should solidify their stranglehold quite a bit in the near future as well as weaken the US system of legal public protection to allow escalating exploitation in numerous other fields going forward.

    With the onset of Eternal War, the Sex Industry will flourish, funneling many more millions of dollars into the offshore accounts of almost everyone currently in T. Rump's administration, and with the end of the open internet as we know it, these same billionaires have insured that public dissent can be quashed quickly and any who expose the truth can be legally and preemptively punished, or quietly "disappeared".

    All in all, the Fascist Team is batting a perfect average and the American Public is still totally preoccupied fighting among themselves over who got the best toys first.

    Apparently Fascism never fails, because nobody believes it is really happening till its far too late.

    Clock is ticking kids.

    ---

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

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 1:22pm

    If one alternate history scenario had come to pass, enforcing this would have been impossible.

    If the United Governates of Alaska had happened, part of the Bay Area would be in the UGA, and the other in the USA.

    Tech companies on the UGA side of the border would not be not subject to United States laws.

    SOPA would have also been unenforceable, if it had passed, and the UGA were in existence.

    With the North Bay in the UGA, wireless ISPs would have sprung up providing service to USA users within range. ISPs and cell phone companies in the United Governates of Alaska would have been not subject to SOPA, even if customers were on the U.S. side of the border using cellphone and wireless ISPs services on the Alaskan side of the border

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

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 3:54pm

    Which happens first?

    Now I'm pondering which will happen first with it - that it will get struck down as unconstitutional or them once big places become completely unmoderated by anything other than DMCA takedowns and users while removing their ability to scapegoat anyone.

    If they passed it sooner it would have given Zuckerberg and others the perfect defense. "Geeze I would have loved to have done something about the meddling but attempting to do so would open us to legal liability so nothing we can do without a court order or DMCA. The risks are too much to reasonably take."

    Backpage and craigslist would have it really good then for every crusading DA trying to 'do something'. "We would love to believe me, but it would open us up to hard time if we tried to help."

    Perhaps wishful thinking but that would be the hilarious end to such a stupid ill-thought out bill and poetic justice for those who want to 'do something' without first considering their actions.

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

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 5:38pm

    It could have been worse, and it could get worse.

    Some years ago, a number of attornies general in the USA, wanted to erase CDA 230 completely repealed, to make ISPs liable as well.

    And one of those 47 attornies general could well be the next President. Kamala Harris could well beat Donald Trump, in 2020. She is one of the few Democrats that could beat Trump, some estimates have her getting 286 electorate votes.

    After Kamala Harris takes the oath of office in 2021, it could get worse.

    ISP blocking, if states mandate it after CDA 230 gets completely repealed when Kamala Harris is President, could be circumvented using VPNs.

    When this happens, in 2021, offshore VPN companies will see a LOT of customers.

    At least the Republicans did not decided to make ISPs liable in this one.

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


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