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.
Filed Under: cda 230, congress, fosta, house, intermediary liability, mimi walters, prostitution, section 230, sesta, sex trafficking
Companies: facebook, internet association