In January, the Senate Permanent Subcommittee on Investigations released a report on Backpage.com’s Knowing Facilitation of Online Sex Trafficking, but criminal charges against the website have failed due to the site’s immunity for third-party content (prostitution ads) under Section 230 of the Communications Decency Act (“CDA230”).
SESTA Introduced
In August, Subcommittee Chairman Rob Portman (R-OH) introduced S. 1693, the “Stop Enabling Sex Traffickers Act of 2017” (SESTA). which would
- Allow victims of sex trafficking to seek justice against websites that knowingly facilitated the crimes against them;
- Eliminate federal liability protections for websites that assist, support, or facilitate a violation of federal sex trafficking laws; and
- Enable state law enforcement officials, not just the federal Department of Justice, to take action against individuals or businesses that violate federal sex trafficking laws.
To accomplish this, SESTA redefines child sex trafficking under 18 USC §1591 to include “knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation of subsection,” while amending CDA 230 to make clear that it does not (i) impair State criminal or civil enforcement actions targeting sex trafficking or (ii) private actions for damages under Section 1595 since CDA230
was never intended to provide legal protection to websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.
SESTA had broad support from anti-trafficking groups and law enforcement, including the support of 50 State Attorneys General. See CLBR #268: Taina Bien-Aimé on Backpage and CDA 230.
SESTA Opposition
The legislation drew widespread opposition from Silicon Valley which argued the amendment would invite a “deluge of frivolous litigation targeting legitimate, law-abiding intermediaries,” while actually discouraging websites from partnering with law enforcement “lest they be held to have effective knowledge of user activities that could create legal liability.”
SESTA Compromise
As the internet giants faced scrutiny on Capitol Hill for their role in the 2016 elections, they suddenly changed course and dropped their opposition to a modified version of SESTA that redefined “participation in a venture” to mean “knowingly assisting, supporting, or facilitating a violation.” The amended bill added a provision allowing State Attorneys General, “as parens patriae, [to] bring a civil action against such person on behalf of the residents of the State” in federal court.
SESTA was passed unanimously by the Senate Commerce Committee, but civil liberties groups remain opposed.
SESTA would undermine these key features of Section 230 and the Manager’s Amendment does not resolve these issues. It keeps SESTA’s underlying approach of expanding the potential of federal and state criminal and civil liability for intermediaries based on speech posted by their users. This would create an incredibly strong incentive for intermediaries to err on the side of caution and take down any speech that is flagged to them as potentially relating to trafficking.
Sen. Wyden Puts Hold On Amended SESTA
Senator Ron Wyden (D-OR), who co-authored the Communications Decency Act, has thrown down the gauntlet and put a hold on the bill.
Today I am announcing my public hold and a public warning about SESTA. Having written several laws to combat the scourge of sex trafficking, I take a backseat to no one on the urgency of fighting this horrendous crime. However, I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favor big tech companies at the expense of startups and that it will stifle innovation.
After 25 years of fighting these battles, I’ve learned that just because a big technology company says something is good, doesn’t mean it’s good for the internet or innovation. Most innovation in the digital economy comes from the startups and small firms, the same innovators who will be harmed or locked out of the market by this bill. That said, I appreciate that Senators Thune and Nelson worked to improve SESTA, including by narrowing its scope. While it still makes inadvisable changes to bedrock internet law, those changes are narrower than originally proposed.
To proceed with the bill, sponsors would need to make a cloture motion which requires 60 votes to proceed. The bill currently has 46 co-sponsors.
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