TechFreedom + Engine: How SESTA Fails to Counter Sex Trafficking

TechFreedom and Engine have teamed up to discuss how Sen. Portman and Blumenthal's bill will not solve the sex trafficking problem. See our Medium post here: 

Senator Portman is right: we have a “moral responsibility” to stop online sex trafficking. Sites like absolutely should be brought to justice for facilitating the trafficking of minors and women. The investigative reportissued by his committee earlier this year makes a damning case against the online classifieds website for knowingly facilitating sexual slavery.

His bill, the Stop Enabling Sex Traffickers Act (SESTA) now has 37 cosponsors. That support speaks to SESTA’s good intentions and the importance of the issue, but doesn’t mean the bill is the best way to fight sex trafficking. Nor, unfortunately, will the changes announced on Friday prevent the bill from backfiring. (See how they’d amend current law here.)

Senator Portman took to WIRED two weeks ago to make his case for SESTA. Here’s our case for rethinking the bill, and how Congress can best serve sex trafficking victims without damaging the Internet.

SESTA’s Real Impact

SESTA would amend Section 230 of the Communication Decency Act of 1996 — the law that, more than any other, made today’s Internet possible. Section 230 ensures that, in general, users who post illegal content are held liable for that content rather than the platforms where they post it. As introduced, SESTA would make any website that hosts third party content liable for “knowing conduct” that could “assist, support or facilitate” sex trafficking. Merely knowing that your platform could be used by sex traffickers, would expose you to liability. While recent changes to the bill slightly narrow this language, a platform may still be liable for trafficking activity it is unaware of and cannot control.

Section 230 [is] the law that, more than any other, made today’s Internet possible.

Think of all of the technology you use on a daily basis that could be used by sex traffickers: dating apps, money transfer services, home-sharing platforms, not to mention search engines, customer review sites, and social media platforms. These sites and others will face an impossible choice: either attempt to pre-screen all user-created content and face criminal liability for honest mistakes — an unaffordable option for startups and a functionally unworkable solution for any site with a large user base — or stop screening content altogether and avoid gaining knowledge of any illegal content. The last thing anyone interested in combating sex trafficking should want is to discourage platforms from voluntarily joining the fight against traffickers.

Is New Legislation Really Necessary?

Portman’s argument for new legislation turns on his claim that “courts have consistently ruled that a federal law called the Communications Decency Act (CDA) protects Backpage from liability for its role in sex trafficking.” But Portman’s wrong: while most courts have held that Section 230 shields Backpage from civil liability or state criminal prosecution, the law doesn’t limit federal criminal prosecution in any way.

Portman claims his bill will bring Section 230 “into the 21st century.” But his report — while thorough in detailing Backpage’s crimes — barely scratches the surface of what’s already possible under current law.

Section 230 doesn’t limit federal criminal prosecution in any way.

To start, a federal grand jury has been convened in Arizona, and lawyers for Backpage’s founders have said they expect their clients to be indicted imminently. State criminal prosecutions are possible, too — if prosecutors can show that websites crossed the line between being a passive publisher and contributing to the illegal conduct of sex trafficking.

The same goes for civil lawsuits. In fact, Backpage was found to have crossed that line by the Washington State Supreme Court. Crucially, the court held that Backpage’s longstanding practice of both automatically and manually editing sex trafficking ads to help evade detection by law enforcement made Backpage an accomplice. That allowed a civil suit by trafficking victims to proceed but Backpage settled the case just before trial was set to begin in October.

Some SESTA advocates insist the Washington case is a fluke, but other such civil cases and state criminal prosecutions are sure to follow — especially now that Backpage has actually settled. The easiest cases will focus on Backpage clearly helping draft sex trafficking ads — something revealed by a Washington Post exposé this summer and that clearly isn’t protected by Section 230. Such precedents would help ensure that Section 230 doesn’t stop lawsuits against other truly bad sites in the future — just as the DOJ has shut down and MyRedbook.

Fixing SESTA — and Alternatives

While we remain skeptical that new legislation is needed to fight online trafficking, we’ve been working with SESTA’s sponsors to address our concerns with their bill. Unfortunately, Portman’s proposed amendmentdoesn’t address our core concerns.

SESTA’s definition of culpable knowledge remains the greatest problem. Portman’s amendment is somewhat less vague but still stops short of saying that platforms must, to be liable, have actual knowledge of trafficking activity on their sites. The bill does not require that platforms knew what they were assisting. That leaves honest platforms at risk of criminal liability for third-party conduct they can’t control.

Sites need clarity about when they have an obligation to remove trafficking content. It’s one thing to require websites to take down trafficking content; it’s quite another to hold them responsible under vague standards for deciding when to do so, particularly because trafficking content is often ambiguous or intentionally disguised. So rather than forcing platforms to flag trafficking content perfectly and be held criminally liable for honest mistakes, there should be a way for websites to notify law enforcement about content that might involve sex trafficking — and for anyone to report such content to a website. Law enforcement, not websites, should make the decision about taking alleged trafficking content down — and websites should indeed have a duty to cooperate. This approach has been tremendously successful in getting websites to help stop the spread of child exploitation images.

There should be a way for websites to notify law enforcement about content that might involve sex trafficking… and websites should indeed have a duty to cooperate.

Second, SESTA shouldn’t erode the Good Samaritan immunity. Portman’s amendment tries to preserve the Good Samaritan immunity by referencing Section 230(c)(2)(A), but as Prof. Eric Goldman, the leading Section 230 expert, notes, this misunderstands how the immunity works. The only way to avoid discouraging sites from fighting trafficking is to add something like the following to Section 230 (and make sure that SESTA leaves it in place):

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove, material it considers objectionable shall not be considered in determining its liability for any material that it has not removed or restricted access to.

The key word here is “monitoring:” it’s not enough to immunize sites for taking trafficking content down: if sites risk increasingly their liability merely by looking for trafficking content, they’ll do less looking — and victims will suffer. That perverse incentive is precisely what Section 230 was intended to prevent. It’s critical that websites can work as “Good Samaritans” to monitor for illegal activity without increasing their potential liability.

Furthermore, SESTA must protect websites when what looks like “facilitation” of sex trafficking is, in fact, part of an effort directed by law enforcement to catch sex traffickers — lest websites hesitate to do do everything they can to bring criminals to justice.

Finally, imposing criminal liability for past conduct violates the ex post facto clause of the Constitution. (The same may also be true for civil liability under the bill — a harder legal question.)

Any new legislation intended to stop sex trafficking should put good tech companies on the same side as law enforcement — working together fulfill our shared moral responsibility to defend society’s most vulnerable.

The Senate Commerce Committee will consider Portman’s changes at a markup on Wednesday. We hope members of the committee consider the amendments we’ve proposed — but given the Senate’s rush to pass something, they probably won’t. It’ll likely be up to the House Judiciary Committee to write a bill that’s focused on results, not rhetoric.

Berin Szóka is President of TechFreedom, a non-profit tech policy think tank. Evan Engstrom is Executive Director of Engine, a non-profit startup advocacy and research organization.