While the Net Neutrality debate has been in the foreground, Congress has been quietly moving forward legislation that risks fundamentally modifying the liability protection for Internet intermediaries like Facebook, Google, and PayPal, and forever changing the Internet. The proposed legislation has good intentions of stopping sex trafficking, but in an effort to stop a few bad actors the current overly broad version of the bill risks not only stopping the next Internet innovation, but also failing to achieve even this laudable goal.
Where Are We Now: A Legislative Update
As I have written earlier, the House and the Senate version each introduced bills nobly aimed at preventing and fighting sex trafficking. The House bill, FOSTA, was amended during the committee process and these significant changes minimized many of the most concerning elements of the original version of the legislation. The bill still had many flaws including standards that remained vague and did not account for a website’s size, but it was generally applauded as a significant step towards achieving its goal while minimizing the damage to free expression on the Internet. The Senate bill, SESTA, retained many of the concerns of the initial FOSTA bill. Before the House voted, FOSTA was amended to include all elements of SESTA both good and bad. The bill with SESTA attached passed the House and now proceeds to the Senate where a vote is expected next week.
The Continuing Problems of FOSTA/SESTA
According to Internet law professor Eric Goldman, unfortunately the House passed FOSTA now represents the worst of both worlds and could have far reaching implications not just for those engaged in detestable practices but also for advocates, social media, and free speech online more generally. The current version of the bill has also been criticized by many including not only the tech community, but also the prosecutors at the Department of Justice.
There are at least three primary issues remaining in the FOSTA/SESTA legislation as proposed.
First, it could make the problem of identifying and rescuing victims more difficult for advocates. This is for two main reasons. As law professor Ariel Levy pointed out even if the bill succeeds in removing sex trafficking online, it will only push the true perpetrators of these acts further underground making it harder for those seeking to monitor and prosecute such crimes to find victims. It also risks silencing the spread of information to help victims due to broad language in the law and the difficulty companies would have in distinguishing such messages. Finally, the law does not distinguish forced from voluntary transactions. Advocates for sex workers have expressed concerns that the law would prevent the sharing of information that has increased safety.
Second, it could actually make it more difficult for prosecutors to go after perpetrators of these crimes. The Department of Justice letter points out that the vague language such as “participation in a venture” will make it harder to prosecute wrongdoers. As I have previously discussed, prosecutors have the tools and should be encouraged to use them. Mike Masnick recently pointed out that while the bill creates a new crime, it is already illegal to engage in and advertise sex-trafficking. The current vagueness and imposition of new liability on third parties not actively engaged in trafficking could make it harder for prosecutors to use the tools they have to go after the actual traffickers.
Finally, as Rep. Justin Amash questioned in the immediate aftermath of its passage the bill as currently written could easily be interpreted as allowing for ex post facto liability and prosecutions. The version passed by the House expressly allows the prosecution of actions that would have been illegal under the law even if the actions occurred years before its passage. If such provisions were enforced, it’s plausible the courts could find the statute facially unconstitutional.
Potential Solutions
Section 230 immunity has allowed the Internet to flourish for over 20 years. Without such protections, it is unlikely that many user generated communities like social media sites or messaging services would have developed. Since the Senate has not yet voted on the bill, there is still time to leave Section 230 as it currently functions or for amendments that could minimize the risks described above.
First, as suggested by the Department of Justice letter attention should be given to vague definition of participation to limit the application of the law to only those who actively engage in such acts. The current language means that a search engine, payment processor, or social media site could be found liable for even a single transaction by a user. Clear definitions are particularly important given they impact not only civil liability but also the creation of a new crime.
Second, the intent requirements could be raised to limit the law only to those with truly bad intentions and protect Good Samaritan actors who accidentally make a mistake. The current version has a relatively low requirement for liability. A recent Wall Street Journal editorial pointed out that an attorney would only need to show that the website “should have known” not that they actually knew this behavior was going on in order to bring a lawsuit. As a result, intermediaries are most likely to engage in aggressive censorship. This could result in wrongfully silencing advocates as discussed above. Of course, others could choose not to engage in moderating at all out of a fear that they will be found to have knowledge. Ideally, a provision to protect moderator actions and a heightened mens rea requirement would minimize these risks.
Third, remove any ex post facto applications of the statute. A website could not have taken additional steps to comply with a law that existed prior to its passage, so should only reasonably be held liable for actions that occur since the law’s passage. Even for seemingly innocuous social media websites like Facebook or search engines like Google the new standard would require significantly more resources devoted to monitoring than they already engage in. Given that the law would undo two decades of status quo for moderation, it seems providing intermediaries a few months to insure they have the necessary resources is a reasonable change.
Section 230 has worked to allow the Internet to flourish in ways that could not have been predicted 20 years ago. Any changes to Section 230 liability protection are likely to have far reaching implications for the Internet and innovation. While these changes may be brought with good intentions, they risk fundamentally changing nature of new communications tools and doing quite a bit more than just targeting bad actors.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.