Senate SAVE Act Raises Major Free Expression Concerns

Yesterday, Senators Mark Kirk and Dianne Feinstein introduced the Senate version of the Stop Advertising Victims of Exploitation (SAVE) Act, following House passage of a related bill last month. Like the House bill, the Kirk-Feinstein SAVE Act aims to create federal criminal liability for online content platforms that host ads related to child trafficking.  The Kirk-Feinstein bill would allow law enforcement to prosecute online commerce sites like Craigslist, Amazon, and Ebay for having “reckless disregard” that an advertisement for adult services was intended to further a child trafficking operation. As CDT and others cautioned with the House bill, this potential for criminal liability would serve as a strong incentive for content platforms to simply take down any adult-themed content that they are notified of – better to censor with a broad brush than risk 10 years in prison.

The Kirk-Feinstein bill also introduces an extensive recordkeeping requirement that would broadly implicate all user-generated content platforms.  Section (c) of the bill requires anyone who hosts an adult advertisement to obtain a government-issued photo ID from the person who created the ad, and any people appearing in the ad, and maintain those records for a minimum of seven years.  The bill’s definition of “adult advertisement” is broad: it includes lawful communications about lawful services and covers communications that are only designed in part to function as an advertisement.  So, for example, an adult performer who uses a social media platform like Twitter or Tumblr to engage in self-promotion is likely to upload content that falls under the bill’s definition of “adult advertisement”.

Moreover, this recordkeeping obligation is not limited to content platforms that know or are aware of the fact that they are hosting “adult advertising” – being the host of user-supplied content that happens to include adult advertising would be enough.  And, while the bill attempts to style the recordkeeping requirement as a safe harbor from liability, in fact it creates an obligation to maintain the records or face a $250,000 penalty or jail time.  This is a major liability risk for operators of user-generated content platforms, who host high volumes of content and have little to no control over what users decide to upload. The options under the bill for reducing platforms’ risk – prohibit all adult-oriented content, or obtain sensitive identifying information from all users before allowing them to upload content – would place immense burdens on platforms and online speakers alike.  An online identity verification requirement would unquestionably have a chilling effect on adults’ willingness to engage in communications about lawful goods and services and would be a significant intrusion into their right to privacy.  Similar identification requirements in the Child Online Protection Act led to that law being struck down due, in part, to the burden these requirements place on speakers, listeners, and hosts of protected speech.

This highlights the fundamental importance of shielding content platforms and other online intermediaries from liability for users’ content.  Holding third-party content hosts legally responsible for content they did not create would significantly reduce the opportunities for individuals to create, share information, and express themselves online.  This is especially true where the penalties are criminal.  The Kirk-Feinstein bill sweeps broadly and would have major unintended consequences for wholly lawful, constitutionally protected speech.  The Senate should reject this flawed approach.

A more detailed analysis of the Kirk-Feinstein bill is available here.

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