When a bipartisan posse of the top lawmakers in the country proposed a law called the Stop Enabling Sex Traffickers Act this week, it must have seemed to them like the ultimate no-brainer, a rare sign of unity during this bitterly fractious era. Yet this piece of legislation, which seeks to crack down on online platforms that knowingly proliferate illegal sexual trafficking content, is anything but a slam dunk. It’s bitterly opposed by Silicon Valley and represents just the latest dispute in a long-running debate over the right balance to strike between online freedom and civic responsibility.
Over 20 senators have signed off on the bill, which specifically targets one of the holiest texts in the tech sector: Section 230. This portion of the Communications Decency Act passed in 1996 protects internet companies from being liable for the offensive content that is posted on their platforms—it is why Reddit and Facebook aren’t legally responsible for what its users say.
Section 230 is one of the pillars of online free speech, as well as many technology giant business models. Without this one tiny provision of the law, neither Facebook nor Google would likely have grown as dominant as they are today, since they would have been considered liable for any and all of the content posted to its sites.
The Stop Enabling Sex Traffickers Act focuses specifically on this one provision of the law as a way to combat sites like Backpage.com, which are notorious for hosting classified ads for sex workers, thus enabling sex trafficking. The idea is that Section 230 would be amended to say that websites that knowingly facilitate sex trafficking lose their legal protection. The fear, however, is that changing the law would result in unanticipated consequences that could significantly alter the way we use our favorite platforms like Facebook and Twitter, changes that would only be figured out years later in court.
Currently, Section 230 serves as a “very powerful shield” for internet companies as well as “the foundation of the internet as we know it,” says Santa Clara University School of Law professor Eric Goldman. Most of the sites people use, he explains, are built upon third-party content. So without the ability for platforms to freely publish such content, going online would be a much different experience, potentially resulting in less online freedom.
Given that, Goldman fears any significant legal ramifications resulting from an amendment to Section 230, noting that there’s no telling how potential litigators will try to interpret the new provisions. Already Section 230 has a few exclusions about the sort of content that is not protected–namely federal criminal law, intellectual property law, and electronic communications privacy law–and those exceptions have prompted numerous lawsuits against internet companies. Any shift that allows for more exclusions will result in even more litigation, says Goldman.
And it’s not even clear if this law will accomplish what it sets out to accomplish. “The law is targeting Backpage,” he says, “but it’s unclear what will happen if Backpage exits the industry. Does that make the lives of the victims better?” Goldman’s point is that by specifically targeting Backpage (which, it’s true, was the only example given by all of the senators introducing the bill) it’s unclear whether this focus actually does anything to stop sex trafficking, which has systemic roots in poverty, immigration policy, and sexism, among others.
But anti-sex-trafficking advocates see SESTA as a step in the right direction. Bradley Myles, CEO and executive director of the Polaris organization, says that what’s most important is ending the status quo created by Section 230 for websites like Backpage. For years the site has won endless lawsuits relating to content that was uploaded to it. Since Backpage itself wasn’t liable for the illegal posts, it was able to successfully fend off legal action.
This creates a signal to others, says Myles, that it’s okay to create online spaces for this type of content. “We are not exclusively concerned with Backpage,” he says, “there are other sites that are being formed now or in the future following in Backpage’s footsteps. With years of legal victories thanks to the current law’s safe harbor, advocates wanted to change things. Organizations like Polaris have worked toward “some sort of remedy or change to statutes that could put in place a systemic solution going forward.”
In Myles’s eyes, the wording of SESTA is spot-on. “I think it’s very narrow,” he says, “I think it’s surgical.” And the wording is what’s most important because it will shape decades, if not centuries, of future legal battles. There was an immense need to craft an amendment that would account for this sort illegal content, he says, and SESTA is a promising way to do that.
Myles believes that the legislation won’t hurt the bottom line of tech giants. “Polaris has a very strong and positive relationship with [companies like] Google and Facebook,” he says. “We don’t have any interest in solutions that are too broad or that massively disrupt business operations for some of the biggest tech companies in the world.” This wording, he adds, seems to be the best kind of compromise.
Tech companies aren’t convinced. Already the Internet Association, which represents giants including Facebook, Google, Amazon, Airbnb, and Twitter, has issued a statement opposing the legislation. “This bill is overly broad and will be counterproductive in the fight to combat human trafficking,” wrote Internet Association president Michael Beckerman in a statement. “While not the intention of the bill, it would create a new wave of frivolous and unpredictable actions against legitimate companies rather than addressing underlying criminal behavior.”
Many of the biggest companies have bulked up their lobbying activity since the start of the Trump administration. Lined up against a group of strong-willed, powerful members of Congress, expect a hard-fought battle in the coming weeks.
Goldman sees Section 230 as a truly pivotal moment for the internet. While it continues to provide safe harbor for the big guys, it still makes the barrier of entry much easier for the little guys. “Section 230 is not really about how much it’s going to cost Google or Facebook to comply with the law, he says. “It’s about the next company to displace Google or Facebook.”
Meanwhile Myles is hopeful about the passage of this law or similar legislation, holding out hope that the two sides can reach some sort of compromise over how to take on an issue that is universally condemned.
“I think that if there are other groups that have other proposed solutions or refinement to the language,” he says, “I’d love to hear what those solutions are and keep a really open dialogue instead of locking in on certain positions.”