Articles by Jennifer Huddleston Skees

Jennifer Huddleston SkeesJennifer Huddleston is a Legal Research Associate with the Technology Policy Program at the Mercatus Center at George Mason University. She has a B.A. in Political Science from Wellesley College and a J.D. from the University of Alabama School of Law. Her interests are focused on the intersections of technology policy and legal issues such as products liability, intellectual property, and administrative law.


There has been an increasing outcry recently from conservatives that social media is conspiring to silence their voices.  Leading voices including President Donald Trump and Senator Ted Cruz have started calling for legislative or regulatory actions to correct this perceived “bias”. But these calls for fairness miss the importance of allowing such services to develop their own terms and for users to determine what services to use and the benefit that such services have been to conservatives.

Social media is becoming a part of our everyday lives and recent events have only increased our general awareness of this fact. More than half of American adults login to Facebook on a daily basis. As a result, some policymakers have argued that such sites are the new public square. In general, the First Amendment strictly limits what the government can do to limit speakers in public spaces and requires that such limits be applied equally to different points of view. At the same time, private entities are generally allowed to set terms regarding what speech may or may not be allowed on their own platforms.

The argument that modern day websites are the new public square and must maintain a neutral view point was recently rejected in a lawsuit between PraegerU and YouTube. Praeger believed that its conservative viewpoint was being silenced by YouTube decision to place many of its videos in “restricted mode.” In this case, the court found that YouTube was still acting as a private service rather than one filling a typical government role. Other cases have similarly asserted that Internet intermediaries have First Amendment rights to reject or limit ads or content as part of their own rights to speak or not speak. Conservatives have long been proponents of property rights, freedom of association, and free markets. But now, faced with platforms choosing to exercise their rights, rather than defend those values and compete in the market some “conservatives” are arguing for legislation or utilizing litigation to bully the marketplace of ideas into giving them a louder microphone. In fact, part of the purpose behind creating the liability immunity (known as Section 230) for such services was the principle that a variety of platforms would emerge with different standards and new and diverse communities could be created and evolve to serve different audiences.

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There are a growing number of voices raising concerns about privacy rights and data security in the wake of news of data breaches and potential influence. The European Union (EU) recently adopted the heavily restrictive General Data Privacy Rule (GDPR) that favors individual privacy over innovation or the right to speak. While there has been some discussion of potential federal legislation related to data privacy, none of these attempts has truly gained traction beyond existing special protections for vulnerable users (like children) or specific information (like that of healthcare and finances). Some states, notably including California, are attempting to solve this perceived problem of data privacy on their own, but often are creating bigger problems and passing potentially unconstitutional and often poorly drafted solutions.

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The Internet is a great tool for women’s empowerment, because it gives us the freedom to better our lives in ways that previously far more limited. Today, the FCC’s Restoring Internet Freedom Order helped the Internet become even freer.

There is a lot of misinformation and scare tactics about the previous administration’s so-called “net neutrality” rules. But the Obama-era Open Internet Order regulations were not neutral at all. Rather, they ham-handedly forced Internet Service Providers (ISPs) into a Depression-era regulatory classification known as a Title II common carrier. This would have slowed Internet dynamism, and with it, opportunities for women.

Today’s deregulatory move by the FCC reverses that decision, which will allow more ISPs to enter the market. More players in the market make Internet service better, faster, cheaper, and more wildly available. This is especially good for women who have especially benefited from the increased connectivity and flexibility that the Internet has provided.

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The recently enacted Stop Enabling Sex Trafficking Act (SESTA) has many problems including that it doesn’t achieve its stated purpose of stopping sex trafficking. It contains a retroactivity clause that appears facially unconstitutional, but this provision would likely be severable by courts if used as the sole basis of a legal challenge. Perhaps more concerning are the potential First Amendment violations of the law.

These concerns go far beyond the rights of websites as speakers, but to the individual users’ content generation. Promoting sex trafficking is already a crime and a lawful restraint on speech. Websites, however, have acted broadly and quickly due to concerns of their new liability under the law and as a result lawful speech has also been stifled.

Given the controversial nature of the law it seems likely that a legal challenge is forthcoming. Here are three ideas about what a First Amendment challenge to the law might look like.

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Last Friday, law enforcement agencies shutdown Backpage.com. The website has become infamous for its role in sex trafficking, particularly related to underage victims, and its shutdown is rightly being applaud by many as a significant win for preventing sex trafficking online. This shutdown shows, however, that prosecutors had the tools necessary to go after bad actors prior to the passage of the Stop Enabling Sex Traffickers Act (SESTA) last month. Unfortunately, this is not the first time the government has pushed for regulation of technology knowing it already had the tools and information needed to build a case against bad actors.

The version of SESTA passed by Congress last month included a number of poorly thought through components including an ex post facto application and poorly articulated definitions, but it passed both houses of Congress with little opposition. In fact, because the law was seen as a must pass and linked to sex trafficking, the Senate even overwhelming rejected an amendment to provide additional funding for prosecuting such crimes. Even without being signed into law, SESTA has already resulted in Reddit and Craigslist removing communities from their platforms within days of its passage. What this most recent event shows is the government already had the tools to go after the bad actors like Backpage, but failed to use them as Congress debated and passed a law that chipped away at the protection for the rest of the Internet and gave the government even broader powers.

This is not the first time that the government has encouraged through either its action or inaction damaging regulation of disruptive technology while knowing that it had tools at its disposal that could achieve the desired results without the need for an additional regulatory burden. In 2016, the government argued following the San Bernadino shootings that it need more access to encrypted devices like the iPhone when Apple refused to comply with a writ compelling it to unlock the shooters’ phones. The Senate responded to the controversy by proposing a bill that would require business like Apple to assist authorities in gaining access to encrypted devices. Thankfully, because the FBI was able to gain the information needed without Apple through a third party vendor, such calls largely diminished and the legislation never went anywhere.  Now, a recent Office of the Inspector General report has revealed the FBI “testified inaccurately or made false statements” regarding its ability to gain data from the encrypted iPhone.

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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…

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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.

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Autonomous cars have been discussed rather thoroughly recently and at this point it seems a question of when and how rather than if they will become standard. But as this issue starts to settle, new questions about the application of autonomous technology to other types of transportation are becoming ripe for policy debates. While a great deal of attention seems to be focused on the potential revolutionize the trucking and shipping industries, not as much attention has been paid to how automation may help improve both intercity and intracity bus travel or other public and private transit like trains. The recent requests for comment from the Federal Transit Authority show that policymakers are starting to consider these other modes of transit in preparing for their next recommendations for autonomous vehicles. Here are 5 issues that will need to be considered for an autonomous transit system.

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The house version of the Stop Enabling Sex Trafficking Act (SESTA), called the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), has undergone significant changes that appear to enable it to both truly address the scourge of online sex trafficking and maintain important internet liability protection that encourages a free and open internet. On Tuesday, this amended version passed the House Judiciary Committee. Like most legislation, this latest draft isn’t perfect. But it has made significant steps towards maintaining freedom online while addressing the misdeeds of a few.

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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.

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