The controversial sex trafficking bill SESTA has passed in the US. Many are calling it a dark day for free speech.
It is being hailed as a dark day for free speech in the Internet – at least for American users. The US government has passed the controversial sex trafficking bill SESTA. The bill would hold Internet platforms liable for the actions of their users.
One thing is for sure, this legislation breaks with a longstanding regulatory tradition with the Internet. Some describe it as a hands off approach. All one has to do is refer to Internet safe harbour provisions to see where a lot of this comes from. In the case of copyright, Internet Service Providers can’t be held liable for the actions of their users. As such, if copyright infringement takes place, then it is a case to be settled between the complaining party and the user.
Websites and other Internet services have a similar deal in that as long as there is a mechanism to take content down, websites can’t be held liable for infringement. That is where the “hands off” approach observation comes from to a degree.
So, this is a part of why the passage of this legislation is so significant. American’s are being led away from a system where the networks and services are simply a conduit to a system where services can be held liable. While proponents say this is to stifle human trafficking, few activists and observers of technology are willing to believe it. From Gizmodo:
The hapless members of the US Congress are good at piecemealing together legislation that makes it look like they’ve done something but really just confuses the issue. Case in point, the Stop Enabling Sex Traffickers Act of 2017 (SESTA) has the kind of name that makes it nearly impossible to oppose in public, despite the fact that it could lead to more enabling of sex trafficking online. Originally proposed by Senator Rob Portman, it’s gone through some changes and has been adapted into the House’s Fight Online Sex Trafficking Act (FOSTA) bill that passed in February. There a lot of little details and minor differences to discuss between each version of what the EFF has called a “Frankenstein’s Monster of a bill.” For the sake of clarity, let’s just call it all SESTA since the criticisms are mostly consistent between the House and Senate versions of the legislation.
SESTA was prompted by a case involving Backpage.com, in which executives of the site were arrested on charges of pimping a minor, pimping, and conspiracy to commit pimping. Backpage’s “adult” section was allegedly used for prostitution, however courts dismissed the case based on Section 230 of the Communications Decency Act. That little section of the law is one of the most important reasons we have the internet that we do today. It allows companies to avoid most legal liability for content created by others. It’s a big reason social media networks can exist, and it’s also important for messaging, email, comments, and numerous other online services.
A Senate committee report found in 2016 that Backpage is likely not eligible for immunity under Section 230 and the company still faces a Justice Department investigation and a renewed lawsuit from sex trafficking victims. But the wheels of justice turn slowly, and at least two powerful factions have supporte token legislation that appears to be doing something about the problem of bad content online: Lawmakers and tech giants.
SESTA weakens Section 230 in an effort to give sex trafficking victims greater ability to sue websites and state prosecutors the ability to hold companies criminally liable for user-generated content. Its critics say SESTA will lead some platforms to over-censor content with heavy-handed algorithms because it’s just too expensive to police it with humans and algorithms are bad at nuance. On the flip-side, many companies might abandon moderation altogether in order to ensure that it can never be proven they “knowingly” facilitated the offending material.
Meanwhile, the electronic Frontier Foundation (EFF) called this moment “a dark day for the Internet”. From the EFF:
The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let’s be clear: Congress just made trafficking victims less safe, not more.
The version of FOSTA that just passed the Senate combined an earlier version of FOSTA (what we call FOSTA 2.0) with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). The history of SESTA/FOSTA—a bad bill that turned into a worse bill and then was rushed through votes in both houses of Congress—is a story about Congress’ failure to see that its good intentions can result in bad law. It’s a story of Congress’ failure to listen to the constituents who’d be most affected by the laws it passed. It’s also the story of some players in the tech sector choosing to settle for compromises and half-wins that will put ordinary people in danger.
As a result, it is fair to say that innovation will likely be driven out of the US as a result. The amount of manpower needed to police entire social networks would be huge and something that only the biggest players will be able to do – if then. It’s unclear if we are going to see an exodus of Internet innovation into other countries such as Canada or Britain, but it is certainly an incentive to leave the US borders.
At this stage, American’s are likely going to be going through a “what now?” phase. After all, this legislation puts a wrench into the system. So, in the coming days, there will be a lot of soul searching and contemplation of what the future of the Internet holds for Americans.
Drew Wilson on Twitter: @icecube85 and Google+.
