Senators, Congressmen Agree: Need to Find “Common Ground” on CDA 230

Members of Congress & witnesses at recent committee hearings agree that drafted legislation can be improved to better achieve the shared goal of stopping sex trafficking online.

Finding Common Ground

Rep. Steve Chabot (R-OH): “The internet has been one of the greatest innovations in history. It has brought tremendous economic and social benefits to humankind. Nearly any transaction…we can now accomplish with a few clicks of the mouse in the comfort of our own homes...Congress must now revisit the Communications Decency Act to determine whether courts are interpreting the language of the statute as intended, and whether amendments are necessary to hold accountable these websites that have allowed with impunity young people to be sold online.” (Hearing Testimony, 10/3/17)

Senator John Thune (R-SD): “I would encourage you and the companies you represent to continue to be at the table and to figure out if there’s a way we can resolve what some have acknowledged are perhaps unintended consequences in the current draft of the bill, but get to a place where we can move forward because I think everybody agrees that this is an area we need to provide clarity. It’s up to us to clarify the issues that are constantly involved in litigation, and I happen to think there’s a path forward to be able to do that based on what I’ve heard today.” (Hearing Testimony, 9/19/17)

Rep. Sheila Jackson-Lee (D-TX): “This hearing extends far beyond any proposed legislation because we hope to address the physical and psychological damage of sex trafficking more broadly and how best to navigate the online space for accountability while ensuring that we do not employ and undermine justice for all.” (Hearing Testimony, 10/3/17)

Senator Cory Booker (D-NJ): “I’m appreciative of this hearing and I’m appreciative by your sense of urgency and I just want to try to get to the root of what it seems to be the balance of people are trying to achieve, which is to give great leaders in law enforcement, like General Becerra, the tools necessary to bring evil people to justice. But I hear a lot of other arguments about not wanting to undermine good actors and what they are doing.” (Hearing Testimony, 9/19/17)

Senator Todd Young (R-IN): “Thanks so much to our panelists and the other stakeholders who are working so hard to help us find some common ground here… I feel an imperative for us to act and I share the goals that those who put this legislation together have...Can we bridge that divide? I think we’re pretty close here…Count me in as someone who want to constructively work towards a conclusion here and find that sweet spot so that we can protect our young men and women in this country and prevent this horrible predation that continues to grow in the state of Indiana and beyond.” (Hearing Testimony, 9/19/17)

Senator Ed Markey (D-MA): “This is an issue we have to resolve. And we have to find a way through it. You’ve all presented very compelling testimony here and I think you’re giving us I think a good education on the problem and on where the potential avenues can be created in order to work together on a bipartisan basis...I offer my cooperation to the Chairman and Senator Blumenthal to try to work this thing through so we can find a consensus resolution of it.” (Hearing Testimony, 9/19/17)

Yiota Souras, National Center for Missing & Exploited Children: “Technology companies, such as Google, Facebook, Microsoft, and others have devoted tremendous resources to reduce child sexual exploitation on their platforms...At NCMEC we have over three decades of working closely with the technology companies within the purpose of our mission. They have provided tools and partnered with us in a very collaborative manner to participate in ridding the Internet of child sexual exploitation material.” (Hearing Testimony, 9/19/17)

Senator Maggie Hassan (D-NH): “I know there are conversations - we are having some of them going back and forth - about ways we can improve the bill, and that’s part of today’s purpose to hear different perspectives. I just want, as a co-sponsor, to encourage these conversations to go forward … I think we’d all like to hear some specifics on how we can make this law as effective as possible without the unintended consequences that we have heard here today.” (Hearing Testimony, 9/19/17)

Abigail Slater, Internet Association: “A more tailored bill that truly targets actors such as without undermining the ability of legitimate actors to help combat sex trafficking is possible and we stand ready to work with the committee toward this goal.” (Hearing Testimony, 9/19/17)

Senator Catherine Cortez Masto (D-NV): “Thank you for the conversation today and let me just start off because I think, like Senator Booker, I’m trying to really understand and get down to where we can come to agreement on this legislation, which, I think, is so important that we pass it.” (Hearing Testimony, 9/19/17)

Senator Brian Schatz (D-HI): “The purpose of SESTA is to enable civil and criminal prosecution against bad actors but we obviously want to provide space and not deter proactive actions by good actors that are doing the right thing to mitigate sex trafficking on the platforms...There’s a conversation going on about whether report language clarifying that the law is intended to apply to those actors who enable sex trafficking and not to those who promptly act in good faith of violation and I’m wondering if that would be sufficient, if you think that that would be enough for counsel to hang their hat on for some of these big platforms who want to do the right thing but are…worried that their ‘knowing’ at all triggers the ‘knowing’ part of the statute…” (Hearing Testimony, 9/19/17)

Rep. Hakeem Jeffries (D-NY): “Striking the right balance, seems to me, is going to be the approach that’s necessary here and we appreciate your thoughts in that regard.” (Hearing Testimony, 10/3/17)

The Need For A Clear, Uniform National Standard

Professor Jeff Kosseff, U.S. Naval Academy: “It really comes down to both as was mentioned, having some sort of national standard so that websites and other platforms don’t have to look at 50 different state laws to make sure they’re compliant...So, if I were a lawyer representing a website and there was a very low standard for what would trigger liability, I would probably tell them don’t allow user generated content even if they have nothing to do with sex trafficking unless they’re able to monitor. I think we just need to be precise and go after the bad actors and I think it’s possible. You just have to craft it very carefully.” (Hearing Testimony, 10/3/17)

Chris Cox, NetChoice: “If we start to have, within Section 230 itself, substantive standards that are different for one crime versus another, it’s going to beg for relief for other crimes, one at a time...that’s going to cause Judges great distress in trying to figure out what in the hell Congress meant by saying there’s a different standard now for one crime within another. There’s one standard in Section 230 that applies to all offenses and it’s really important that it be a clear standard. The standard is that, if you participate in the creation of content or the development...then you lose any of the protections of Section 230 and that’s how we parse the guilty and the innocent.” (Hearing Testimony, 10/3/17)

Yiota Souras, National Center for Missing & Exploited Children: “So something more is required and we could debate, you know, what is conduct in, you know, in the context of an online platform. But I just want to make sure that, you know, we're clear that it is just simply a blanket notice type standard. You know, that being said, I certainly acknowledge there could be complex very specific business practices that certainly platforms might, you know, utilize where they fear they could fit within that definition.” (Hearing Testimony, 9/19/17)

Evan Engstrom, Engine: “I think we need to take those lessons and apply them here and make sure we’re crafting knowledge in a very clear way that gets at bad actors and not honest startups.” (Hearing Testimony, 10/3/17)

DOJ Already Has The Tools And Authority To Prosecute

Rep. Mike Johnson (R-LA): Are we missing the forest for the trees here? Why not focus on prosecuting the websites that can be considered content providers for knowing facilitation of prostitution which seems to be more readily provable as an offense? Why not increase criminal exposure there? (Hearing Testimony, 10/3/17)

Professor Eric Goldman, Santa Clara University School of Law: “Congress has enacted numerous crimes against sex trafficking and its promotion, including most recently the SAVE Act passed just two years ago to target sex trafficking promotions on Backpage. If the Department of Justice prosecutes Backpage for any crimes Backpage may have committed (whether the SAVE Act or other crimes), Section 230 will not shield Backpage. A federal grand jury is currently investigating Backpage. Congress should wait for the results of that investigation—which I hope will come soon—to help identify if any gaps exist in the law and how Congress should best respond.” (Hearing Testimony, 9/19/17)

Chris Cox, NetChoice: “The simple approach of 230 is to protect the innocent and punish the guilty. There is absolutely no effect whatsoever on federal criminal law. This is important because the SAVE Act which this Congress very recently enacted and signed by President Obama gives new sex trafficking prosecutorial tools to the Department of Justice, that are in no way affected by Section 230. It has no impact whatsoever. And yet, not a single prosecution has been brought under this new law.” (Hearing Testimony, 10/3/17)

Evan Engstrom, Engine: “The answer for taking down webpages like Backpage is to devote as many resources as we possibly can...I think we have tools in the law to do it. I think we need to make sure we have the gumption and the funding and the interest necessary to get that done.” (Hearing Testimony, 10/3/17)