Articles by Jennifer Huddleston 
Jennifer Huddleston is the Director of Technology and Innovation Policy at the American Action Forum. 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 online content moderation, data privacy, antitrust, and transportation innovation.
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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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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Tesla, Volvo, and Cadillac have all released a vehicle with features that push them beyond the standard level 2 features and nearing a level 3 “self-driving” automation system where the driver is still needs to be there, but the car can do most of the work. While there have been some notable accidents, most of these were tied to driver errors or behavior and not the technology. Still autonomous vehicles hold the promise of potentially reducing traffic accidents by more than 90% if widely adopted. However, fewer accidents and a reduction in the potential for human error in driving could change the function and formulas of the auto insurance market.
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Congress is poised to act on “driverless car” legislation that might help us achieve one of the greatest public health success stories of our lifetime by bringing down the staggering costs associated with car crashes.
The SELF DRIVE Act currently awaiting a vote in the House of Representatives would pre-empt the existing state laws concerning driverless cars and replace these state laws with a federal standard. The law would formalize the existing NHTSA standards for driverless cars and establish their role as the regulator of the design, construction, and performance of this technology. The states would become regulators for driverless cars and its technology in the same way as they are for current driver operated motor vehicles.
It is important we get policy right on this front because motor vehicle accidents result in over 35,000 deaths and over 2 million injuries each year. These numbers continue to rise as more people hit the roads due to lower gas prices and as more distractions while driving emerge. The National Highway Traffic Safety Administration (NHTSA) estimates 94 percent of these crashes are caused by driver error.
Driverless cars provide a potential solution to this tragedy. One study estimated that widespread adoption of such technology would avoid about 28 percent of all motor vehicle accidents and prevent nearly 10,000 deaths each year. This lifesaving technology may be generally available sooner than expected if innovators are allowed to freely develop it.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.