SESTA: Congressional Overregulation and Misunderstanding of the Internet

By: Ryan Johnston

On February 8, 1996 then President Bill Clinton signed into law the Communications Decency Act (CDA). The Act sought to regulate both indecency and obscenity on the internet. Section 230 (c)(1) provides “no provider of user or an interactive service shall be treated as the publisher or speaker of any information provided by another information content provider.” This effectively allows an internet service provider to claim immunity in the event a suit is brought against them for

[A]ny action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

However, Section 230 does not protect against violations of federal law by service providers.

Doe NO. 1 v. is the landmark case that started the outrage over Section 230 with regards to sex trafficking. In this case, advertisements posted in the “Escorts” section for three young women, all minors at the relevant times, who claim to have been victims of sex trafficking the women alleged that Backpage, with an eye to maximizing its profits, engaged in a course of conduct designed to facilitate sex traffickers’ efforts to advertise their victims on the website. The court in Doe refused to hold Backpage, LLC as the publisher of the advertisements, given the protections afforded it by Section 230. However, the court does not make a very important distinction with regards to the types of immunities described in Section 230. Both Sections (c)(1) and (2) of the CDA are express in what is protected, and what is not. “the first immunity protects platforms from liability for hosting user-generated content that others claim is unlawful.” This keeps a service provider from being targeted if something out of their control (a comment, or blog post, etc..) is found to be unlawful. The second immunity protects online platforms from legal challenges brought by their own users when the platforms filter, remove, or otherwise edit those users’ content. Therefore, if Backpage takes down a post that is advertising underage prostitution, they can’t be held liable as a publisher of that content, even if that content is protected by the first amendment.

Generally, when one refers to Section 230 they are in fact referencing the first immunity. The protections afforded by the first immunity allows providers to offer a service that encourages their users to create original content. Currently, a bill before the Senate Committee on Commerce, Science, and Transportation is reviewing a bill introduced by Senator Rob Portman entitled the Stop Enabling Sex Traffickers Act of 2017 (SESTA). SESTA amends Title 18 U.S.C. § 1591 to add a definition of “participation in a venture”, as any knowing conduct which “assists, supports or facilitates” sex trafficking. Furthermore, it amends Section 230 to state its policy to “ensure vigorous enforcement of Federal criminal and civil law relating to sex trafficking,” and that Section 230 does not impair enforcement of “any state criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting sex trafficking, nor impair the enforcement or limit the application of 18 U.S.C. section 1595.”

While this is a good effort on Congress’ part to crack down on sex trafficking, SESTA will likely not have the outcome that Representative Portman expects it to. First and foremost, Section 230 has never, and likely will never, provide immunity to service providers online for violations of Federal criminal law. This includes the federal criminal sex trafficking statute in § 1591. What Congress fails to see is that in 2015 the SAVE Act was passed; which amended 1591 to include advertising as a criminal action. However, as the EFF again correctly points out Section 230 does provide immunity to service providers from liability for user-generated content under state criminal law. Regardless of how it may seem, Congress chose not to open these providers up to criminal prosecution under state law.

Given that there are so many tools in place to track down and prosecute those responsible for sex trafficking, now is not the time to hastily rush legislation that will almost certainly close down the Internet; forcing content hosters to monitor everything posted on their sites, and become curators of content. Instead we should be calling for the Justice Department to begin to bring cases, or at least make public cases it is building so that there can be some indication that steps are being taken to investigate and prosecute online sex traffickers, rather than allow both politicians and the public to assume no cases are in fact being undertaken, and rushing legislation through to remedy a nonexistent issue. There is a very real threat to service providers that they may have to become curators of content, or that we will see far more restrictive posting guidelines for both online commerce and social media postings. The increasing the legal exposure they face is not a sustainable plan to combat online sex trafficking. SESTA may seem like a good short-term idea, but it will have unimagined consequences.

Note: The views expressed above are solely those of the author(s) and do not reflect any official position taken by the Information Security and Privacy Law Student Group, the Washington College of Law, or American University at large


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