Amended SESTA Clears Committee: What’s Changed So Far and How It Impacts Section 230

by on November 8, 2017 · 0 comments

As I have previously written about, a bill currently up for debate in Congress runs the risk of gutting critical liability protections for internet intermediaries. Earlier today the Stop Enabling Sex Traffickers Act passed out of committee with an amendment attempted to remedy some of the most damaging changes to Section 230 in the original act. While this amendment has gained support from some industry groups, it does not fully address the concerns regarding changes to intermediary liability under Section 230. While the amended version shows increased awareness of the far reaching consequences of the act, it does not fully address issues that could have a chilling effect on speech on the internet and risk stifling future internet innovation.

  • Good Samaritan Provision

As Eric Goldman points out, the amended version expressly retains part the Good Samaritan provisions of Section 230 for removals, but it still enables new liability for user publication. As a result, the new amendment only partially preserves Good Samaritan mechanisms and does not fully address concerns about good faith attempts to avoid the new liability.

  • Knowledge Standard

The amended version that cleared committee clarifies the knowledge standard of the earlier bill by stating that for liability to attach the intermediary the intermediary must have participated by “knowingly assisting, supporting, or facilitating a violation.” This improves but does not fully mitigate the damage that establishing new liability could do to internet free speech. As EFF writes, facilitates legally means “to make easier or less difficult” and would include a huge swath of innocuous products, websites, and activities.

This standard is particularly dangerous for online dating and messaging services. For example, if a traffickers used a messaging service to communicate this could be seen as facilitating because it made it easier to communicate. Dating services which set up meetings could also be seen as facilitators if a bad actor used their service to conduct human trafficking. As Mike Masnick at TechDirt argues, there is little certainty in the amended version of what “knowingly” means and it may be as low a standard as general knowledge or media reports that your website was at some point used (or allegedly used) by sex traffickers.

  • The Retroactivity Provision

The new version does not clear up concerns about retroactivity. In both the amended and original versions, the bill states that it applies “regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on or after such date of enactment.”  As a result companies are open to civil and criminal liability for conduct that did not have such liability when it occurred.

 

While the amended SESTA signals a recognition that the bill needs to more narrowly tailored,  it leaves internet intermediaries with the same two choices if enacted.

The first option for intermediaries would be to engage in an aggressive takedown process like they do for copyright claims under the DMCA. This reaction is to take down questioned content first and ask whether it should have been taken down later.  As Masnick notes, however, the DMCA has much clearer provisions for when content must be taken, but still there are seemingly rampant issues with false claims. Such a situation would only be worse under SESTA especially for social media, search engines, and dating websites. Some websites might choose to quit operating rather than engage in the high level of moderation that would be necessary. Because the bill applies to all sizes of companies without any limitations for the amount staff or users, this is more likely to have a negative impact on smaller or more innovative services that might one day become the next Facebook or Google. These companies do not have the same manpower to engage in an aggressive monitoring for their user base and as a result may have more difficulty entering the market if there are greater compliance burdens. Those that did continue would only be those who could afford to devote large number of staff and legal resources to monitoring and determining the accuracy of claims.

The second option is to avoid the cooperation and self-monitoring that websites engage in now.  In a recent interview regarding Russian election ads, Senate Majority leader Mitch McConnell stated that tech should be “more interested in cooperating with law enforcement.” SESTA, however, provides the opposite incentive. Cooperation in investigations would show knowledge and open the intermediary up to further civil liability. As a result, intermediaries might be discouraged from future cooperation.

The amended version will now head to the Senate floor for debate. The bill has a noble goal of making sex trafficking more difficult and this revised version shows progress towards protecting intermediary liability. Still, it addresses the issue more broadly than needed and risks fundamentally changing the internet.

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