This week the Senate Commerce Committee explored legislation that would open up a safe harbor statute long guarded by internet companies. The Stop Enabling Sex Traffickers Act (SESTA), authored by Sen. Rob Portman (R-Ohio), aims to amend a provision of the Communications Decency Act that has become a barrier to prosecutorial efforts in court against Backpage.com and similar websites facing sex trafficking charges. However, while the evil of human trafficking has been denounced widely, divisions have arisen over potential unintended consequences of the legislation.
Section 230 of the Communications Decency Act was inserted in the 1996 Telecommunications Act to encourage “Good Samaritan” blocking of offensive content without exposing web companies to lawsuits based on content that their efforts may have missed. The provision states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Thus, blogs or other sites that host user-generated content have a shield against liability for that third-party content.
Proponents of SESTA argue that Section 230 was not intended and cannot be allowed to protect facilitators of sexual exploitation. Portman, speaking to the committee, said the “increase of sex trafficking is a stain on our national character” and he emphasized that law enforcement leaders “tell us the increase is real and that it’s primarily based on this increase on the internet.” Among those expressing support for the bill, which now has 30 Senate cosponsors from both sides of the aisle, were leaders from Concerned Women for America, Faith & Freedom Coalition, Family Research Council, National Center on Sexual Exploitation, and the Southern Baptist Convention’s Ethics & Religious Liberty Commission.
Not surprisingly, Google and other tech industry corporations have resisted changes to Section 230. However, other groups have also expressed concern. For example, Heritage Action, the 501(c)(4) sister organization to the Heritage Foundation, joined a group letter in defense of Section 230, declaring, “Without these protections, online platforms as small as a personal blog or as big as Wikipedia would face a flood of frivolous lawsuits and potentially devastating filtering costs. It is no exaggeration to say that Section 230 is the law that made today’s Internet possible.” Heritage and its allies on this subject say that Section 230 is not “sacrosanct,” but should be approached with “utmost caution.” They warned, “Upending the balance struck in 1996 without a careful consideration of the effects of doing so could have devastating consequences for the Internet, perversely undermine efforts to combat sex trafficking, and serve as a first step toward further amendments that serve less-laudable purposes.”
Worthy of note was the testimony of California Attorney General Xavier Becerra, who pointed to a recent letter signed by the attorneys general of 48 states and the District of Columbia, encouraging broader loosening of Section 230 for “not only sex trafficking but all criminal enforcement action” at the state and territorial level. However, Eric Goldman, a professor at Santa Clara University of Law, expressed concern with opening the doors to a broad range of state laws. He noted in his written testimony, “Even if we could figure out how SESTA changes the law today, we can’t contemplate how future state laws will take advantage of the new regulatory zones enabled by SESTA.”
While the direction and final text of SESTA are unclear, bipartisan support for its goals were clearly evident. In his closing remarks, Chairman John Thune (R-S.D.) expressed hope for a path forward on the bill and urged the tech industry to cooperate toward that end.
By Aaron Mercer, Vice President of Government Relations
Published: September 22, 2017