Last week, Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.) released the Stop Enabling Sex Traffickers Act of 2017 (SESTA). Don’t let the title fool you. It won’t stop sex trafficking — a worthy goal we should all share — but it might eviscerate the Internet ecosystem.
The bill would make a number of changes to Section 230 of the Communications Decency Act, which provides limited liability protections for websites that serve as platforms for user-generated content.
{mosads}That means that tech companies, big and small, are not civilly liable for the content posted by their users and that accusations of criminal liability are to be prosecuted at the federal, not state, level. SESTA would upend that safe harbor provision, ensuring Section 230 no longer applies that liability exemption to websites that benefit “from participation in a venture” that could be linked to sex trafficking.
The legislation appears to be aimed at Backpage.com, which has been under investigation for acting as a channel for human trafficking. The company has repeatedly used Section 230 as a shield from liability for the actions of its users, but recent evidence has come to light suggesting its actions don’t qualify it for those protections because it actively engaged in facilitating the criminal activity in question. Thus, current law can effectively address the sex trafficking issue, but SESTA would have far-reaching and potentially catastrophic results for the rest of the Internet.
To start, it opens the door to immense uncertainty while closing off opportunities for budding innovators. New startups looking to engage the Internet community are less likely to acquire funding for their ventures if content their users generate results in bankruptable civil suits. Venture capitalists abhor uncertainty, and the potentially broad interpretation of this law’s changes to the liability statutes could very quickly result in an evaporated pool of available capital.
Even bigger tech companies aren’t immune from potentially ruinous litigation under SESTA. Facebook, for example, sees over half a million comments, almost 300,000 status updates, and 136,000 photos uploaded to their site every minute. For companies with that level of user-generated content, the potential for financial devastation is high.
Now extrapolate those numbers to all the other online service providers in the digital landscape. SESTA would just as easily apply to online review websites like Yelp, e-commerce marketplace exchanges like Amazon, and even online media outlets and newspapers that permit users to comment on stories. When you start to consider just how much of the Internet is the product of users contributing comments, thoughts, advertisements, videos, and other content, the ramifications of something like SESTA are significant.
On Wednesday, Sen. Richard Blumenthal (D-Conn.), one of SESTA’s co-sponsors, responded to some of these general points: “I respect their arguments, but I just think there has to be some action to protect people from the Wild West of a lawless site that encourages trafficking and destroys human lives. They have some responsibility to do better.” It’s certainly true that tech companies can do more. However, the idea that the Internet is emblematic of a “Wild West” frontier environment doesn’t comport with reality.
Cyberspace was indeed once a free-wheeling frontier, largely unregulated. But that simply is no longer the case. As the internet has gone mainstream, norms and laws have followed and have evolved to help regulate the initial chaos of the online world. Those changes, however, came about as a result of laws like the Communications Decency Act and Section 230, not in spite of them.
Twenty years ago, a number of decisions were made that paved the way for the explosive growth of digital commerce and online content creation. Along with the Clinton Administration’s Framework for Global Electronic Commerce and the Supreme Court’s decision in Reno v. ACLU, the passage of Section 230 marks an important foundation upon which our modern digital society is built. It’s one of the laws that makes the internet work.
Gutting Section 230 of limited liability protections won’t help combat sex trafficking. Meanwhile, the overwhelming majority of internet users would suffer the costs. Far from civilizing the electronic “Wild West,” SESTA would scorch it, rendering it a wasteland.
Ryan Hagemann is the director of technology policy at the Niskanen Center, a libertarian issue advocacy organization in Washington, D.C. His work focuses on the regulation of emerging technologies, robotics and automation, and other technology policy issues. You can find him on Twitter: @RyanLeeHagemann.
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