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Free Expression

Four Questions Senators Should Ask at Tomorrow’s SESTA Hearing

Members of Congress must seriously consider the consequences of altering one of the cornerstones of the open internet in the US, the law known as Section 230.  Tomorrow, the Senate Commerce Committee will hold a hearing on S.1693, the Stop Enabling Sex Traffickers Act (SESTA). CDT and many other organizations have opposed SESTA; while it is motivated by the best intentions of combatting online sex trafficking ads, it would have enormous collateral consequences for intermediaries that host and transmit third-party content.

SESTA would fundamentally alter the legal landscape for online speech, creating a substantial risk of lawsuits that would discourage website operators from hosting user-generated content. It’s also not at all clear that the changes to current law that this bill would make are necessary or effective for fighting sex trafficking.  As members of the Senate Commerce Committee consider SESTA at tomorrow’s hearing, here are several questions that they should be asking:

What is the gap in current federal anti-trafficking law that SESTA would fill?

A key provision in SESTA is its expansion of the federal criminal prohibition against sex trafficking (18 U.S.C. § 1591).  Federal law already criminalizes the act of knowingly deriving financial benefit from participating in a sex trafficking venture.  Indeed, in 2015, Congress passed the SAVE Act to specifically include “advertises” as one of the categories of criminal conduct covered by the law.

But SESTA would significantly expand federal criminal liability for intermediaries (and many others) by defining “participation in a venture” to mean “knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates” trafficking.  This language is vague and overbroad, and could include a huge range of activities where the entity is aware of providing a service (e.g. registering a domain name, providing internet access, providing electricity), but has no intent whatsoever to engage in trafficking.

Congress intended the SAVE Act to make it a crime for a website operator to knowingly benefit financially from hosting ads that it knows to be in furtherance of a trafficking venture.  Since 2015, federal prosecutors have not used the SAVE Act to prosecute any website operators.  Before Congress dramatically expands § 1591, it should understand what gap exists in the text—and enforcement—of the current law.

What consequences will SESTA have for startups and other small websites?

Section 230 currently preempts all state law claims, but SESTA would also amend Section 230 to create the potential for criminal and civil liability for intermediaries under state anti-trafficking laws. This massive expansion in sources of potential liability would be particularly difficult for small websites and start-up businesses to handle: even understanding the legal risks associated with hosting third-party content would be difficult for an independent website operator to do.  The costs associated with creating a new online service could become prohibitively high, with the additional unintended consequence of cementing the dominance of existing players.

CDT is particularly concerned that a weakened Section 230 would lead to frivolous lawsuits designed to drive a website operator offline. When litigation costs can reach tens or hundreds of thousands of dollars, someone operating a website or other forum for speech could find herself bankrupted merely by successfully defending her innocence. Make no mistake: if the means of civil lawsuits are available, bad actors will seek to exploit them for censorship ends. Congress must grapple with the chilling effect of expanded liability for hosts of third-party content.

Would SESTA be effective at stopping online trafficking ads? 

Congress should also consider whether SESTA would actually lead to a decrease in online trafficking ads and trafficking activity.  The expanded criminal and civil liability in SESTA will create a strong incentive for intermediaries to avoid reviewing and screening ads and other material posted on their services, since reviewing a user’s post would give the intermediary “knowledge” of—and responsibility for—that content.  This could lead to fewer proactive efforts to identify and stop trafficking activity by intermediaries who decide they simply can’t afford the liability risk that would come with good-faith efforts to police against this material.

More broadly, Congress must understand that whatever changes it may make to US law, its reach only extends so far.  The internet is a global network and the criminals who post and respond to trafficking ads will undoubtedly find websites based overseas that will host their activity.  When the buyer, seller, and victim of this horrendous crime are located in the US but the website operator is located outside of US jurisdiction, SESTA will be no help to prosecutors or victims.  Congress must consider how easily bad actors will circumvent SESTA to continue posting trafficking ads online.

Is this the least restrictive means Congress can pursue to achieve its goal?

Committee members may not focus on this question tomorrow, but it’s certainly one that the courts will ask: this question is part of the analysis that courts apply to determine if a law violates the First Amendment.  No matter how Congress might decide to amend Section 230, the federal anti-trafficking law, or any other statute, those amendments must still be constitutional. A law that has a chilling effect on lawful speech will have a hard time passing scrutiny before a court. (Indeed, several broad state-level anti-trafficking statutes that aimed to create liability for intermediaries were struck down on both First Amendment and Section 230 grounds.)  Congress must take SESTA’s impact on lawful speech into account, or risk passing a law that will soon be struck down in court.

CDT is glad to see that the Senate Commerce Committee has invited expert witnesses to discuss SESTA and its implications for both the fight against trafficking and the future of the open Internet in the US. We urge members of the committee to take advantage of this opportunity and ask serious questions about SESTA’s likely efficacy and consequences.