The Senate Commerce Committee held a hearing on a new bill aimed at making it easier to penalize websites and online services that facilitate sex-trafficking.
While much of the hearing focused on the bipartisan and unanimous agreement that sex-trafficking is a tragedy that needs to be addressed, some lawmakers and witnesses noted the potential unintended consequences of the Stop Enabling Sex Trafficking Act (S.1693) as currently drafted.
As we and many others have warned, this well-intentioned bill could have serious negative consequences for law-abiding Internet companies that rely on Section 230 of the Communications Decency Act, a provision of U.S. law that keeps websites from being held legally responsible for the speech of their users.
It is important to note that Section 230 does not shield any website or other online service from the consequences of violating federal criminal laws. As Internet Association General Counsel Abigail Slater repeatedly pointed out during the hearing, the Justice Department can prosecute -- and is currently prosecuting -- bad actors like Backpage.com, the notorious classified ads website that SESTA is specifically intended to target. And as Santa Clara University Law Professor Eric Goldman pointed out, the Justice Department has used its existing authority to shutter two sex trafficking websites: RentBoy and MyRedBook.
So the question isn’t whether law needs to be changed to allow for prosecution against bad actors like Backpage; the question is how to best provide resources for those prosecutions. SESTA and its supporters -- including California Attorney General Xavier Becerra, who testified at the hearing -- answer this question by empowering state attorneys general to enforce state anti-sex trafficking laws against websites and online services that operate in that state.
But as Goldman pointed out during the hearing, the bill’s language goes far beyond simply letting the state attorneys general take on some of the Justice Department’s work. It would open up Internet companies, which are inherently interstate, to each state’s anti-sex trafficking laws—and potentially laws that are only tangentially related to sex trafficking. Internet companies are already bound by federal anti-sex trafficking laws; making them bound to a state-by-state patchwork of 50 different state laws would be difficult for the new and small startups that we work with to navigate.
The other major issue with SESTA that was highlighted during the hearing is that it would remove Section 230’s barrier to civil lawsuits. That provision in the bill is a well-meaning attempt to give sex-trafficking victims their day in court to pursue justice from bad actors like Backpage that helped to facilitate their sex trafficking.
But as currently written, SESTA would make a website or online service more vulnerable to civil penalties if it “knows” sex trafficking is happening on its platform. That could end up punishing the companies that are actively working to keep sex trafficking content off their platforms by monitoring for such content and notifying authorities if they find it. And for startups, the choice to hire engineers to grow the company or hire people to monitor for sex trafficking content will be an easy one if the latter opens them up to costly and time consuming lawsuits. SESTA could inadvertently make it harder for Internet companies to curb sex trafficking content on their platforms.
Sen. Ron Wyden said it best during his testimony, when he talked about his motivation behind working on Section 230 of the Communications Decency Act back in the 1990s: This law was written so that “the gutsy startup” could focus on hiring engineers before having to worry about hiring a team of lawyers.
Of course, at the heart of this issue is the horror of sex trafficking. The testimony from Yvonne Ambrose, the mother of a sex-trafficking and murder victim, was heart wrenching, and a sense of urgency to keep her story from happening again was palpable in the hearing room.
The stories of people like Ambrose’s daughter Desiree is why it’s important that Congress find a solution here that actually works to combat sex trafficking online.
As Slater said during her testimony, the choice here isn’t between protecting sex-trafficking victims or protecting Internet companies. We can work together to find a solution that does both. Like many others in the tech community, we’re ready to find that solution.
