SESTA passed the Senate last week after having previously passed the House. President Trump is expected to sign it into law despite the opposition to this version of the bill from the Department of Justice. As I have previously written about, there are a great deal of concerns about how the bill may actually make it harder to address online sex trafficking and more generally impact innovation on the Internet.
The reality is that we are looking at a post-SESTA world without the full protection of Section 230 and that reality will likely end up far from the best case scenario, but hopefully not fully at the worst. Intermediaries, however, do not have the luxury to wait around and see how the law actually plays out, especially given its retroactive provision. As a result, Reddit has already deleted a variety of sub-reddits and Craigslist has closed its entire personals section. One can only imagine the difficult decisions facing the creators of dating apps or messaging services.
So what can we expect to happen now…
1. Questions remain about how often the law will be used, and when civil cases will be brought
Prosecutors just a few years ago were given additional criminal resources to prosecute sex trafficking in the SAVE Act. Yet, these tools have rarely been used due to the difficulty in prosecuting such crimes. Similarly, most civil litigation settles out of court. Especially given the potential PR nightmares of being seen as not believing victims or favoring bad actors if a civil case does go to trial, there will be a great deal of pressure on intermediaries to settle out of court whether they engaged in unlawful actions or not. The push for settlement will likely be even stronger for smaller companies who lack the resources to hire legal teams, fund litigation, and risk greater damage to the business.
2. However, at some point SESTA will likely end up in court and likely face a constitutional challenge.
The response on the part of websites to the requested changes seems to have been swift and far-reaching. Given that SESTA presents First Amendment challenges and has a most likely unconstitutional retroactive provision, the question seems to be who and when the law will be challenged in courts.
The retroactive nature of the law appears facially unconstitutional. It is, however, likely the courts would be able to sever this provision from the rest of the law. This would fix some of the minor issues with establishing liability after a decision regarding moderation was made, but would not fix the broader innovation and speech quashing concerns of the law.
The First Amendment challenges could come either from sex workers whose lawful speech is being silenced or from those not at all related to sex work whose innocent actions were censored as a result of an intermediary’s low risk tolerance due to increased liability under SESTA.
3. Big intermediaries like Facebook and Google will adjust, but new intermediaries may struggle to get off the ground.
Facebook deletes over 1 million accounts a day. Various tech and app companies are estimated to employ over 100,000 moderators to evaluate user generated content. This work is deeply disturbing and has a high human toll for those engaged in it as other technology has not been able to replace the ability of human moderators to make certain distinctions. Large companies might be able to adapt by hiring more moderators or deleting certain user communities for potential liability raising areas, but smaller companies will be even less able to compete and adapt.
SESTA may prevent us from getting the next Google, Facebook, or Paypal for three key reasons. First, it raises the initial cost of launching a product that has user generated content by requiring additional moderators just to get off the ground. Second, it is likely to make funders less likely to invest in new intermediaries like messaging and dating services if they are concerned that the company is likely to get sued. Third, it may prevent existing small and mid-size tech or app companies in areas like social media or messaging from expanding or innovating in areas that are likely to have interactions between users due to concerns about liability.
For all the concerns that tech is getting too centralized in a few companies, there seems to be little attention paid to the fact that raising the liability risks through laws such as SESTA may result in a scenario where only those few big companies can comply.
4. It sets an uneasy precedent for further eroding Section 230.
This is perhaps the greatest concern. Sex-trafficking is evil, but prosecutors had the tools to go after it and Section 230 already had a carve out for federal crimes. SESTA signals that a legislative reaction to a single or few bad actors’ actions online can result in chipping away at the protection that has allowed the Internet to flourish. It shows that such actions are often not narrowly tailored due to their reactive nature. Especially as there are growing concerns about various individual actors, we must remember that broad legislation risks making it difficult for good actors and new challengers to try to take their place. A post-SESTA world signals that while Section 230 may still exist, it is far to easily eroded for all when concerns about the bad actions of a few arise.
What happens over the next few months and years as both new and existing intermediaries try to adapt will greatly influence the future of the Internet and its ability to be a tool for global connectedness. As Senator Wyden said following the rejection of an amendment to SESTA to fund sex trafficking prosecutions, “I anticipate having to turn back to this topic in short order after the effects of this bill become clear.” How swiftly those effects are felt by everyone and whether the reality of their damage to innovation is clear to policymakers remains unknown, but that such effects will occur in one form or another cannot be disputed.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.