For a trio of Massachusetts women, it seemed like a matter of simple justice.
The three were forced into the sex trade when they were minors, their traffickers advertising the girls on a popular Internet service called Backpage. In 2014, they sued Backpage in federal court in Boston, to hold the online publication complicit in sex trafficking.
But the women lost because of a 21-year-old law, ironically called the Communications Decency Act. The most important part of this law, Section 230, shields Internet site operators from liability for the awful things their users post. Even ads for sex slaves.
Now Congress is getting ready to change the law, and a good thing, too. A Senate committee on Tuesday held hearings on the Stop Enabling Sex Traffickers Act, or SESTA, a modification of the Decency Act that would carve out a special place in legal hell for websites that tolerate illegal acts of sexual exploitation.
The prospect of SESTA has Internet civil libertarians in a panic. Groups such as the Electronic Frontier Foundation warn that the slightest tweak to Section 230 could spell the end of online free speech, forcing Facebook and Twitter to aggressively filter and censor users’ postings in order to avoid ruinous lawsuits.
Even though you probably never heard of it, we should feel protective of Section 230. It’s probably the most valuable Internet legislation ever passed. Without it, online forums such as Facebook, Twitter, and Reddit may have been strangled at birth. But the Internet’s a big boy now, and robust enough to survive a narrowly tailored exception to a very good rule.
As its name suggests, the Communications Decency Act was intended to stamp out online porn. Many of its provisions were found to be unconstitutional, but Section 230 survived. At its heart is a simple idea: An Internet service that publishes the works of others doesn’t bear criminal or civil liability for what these other people publish.
Think of the telephone system. If people plot crimes on their cellphones, the state can prosecute the criminals, but not Sprint or AT&T for carrying the phone calls. In the same way, Section 230 ensures that if someone posts a death threat against the president on Facebook, the feds can’t arrest Mark Zuckerberg. Section 230 also protects Internet companies from civil and criminal actions in state courts.
Backpage has taken full advantage of Section 230, arguing it’s not at fault for the ads that degenerates and pimps run on its site. But judges who have let the company off the hook have practically begged for changes to the law.
“The remedy is through legislation, not through litigation,” the appeals court that tossed out the cases of the women said in 2016. “Congress has spoken on this matter and it is for Congress, not this Court, to revisit,” said a California state judge who threw out a criminal case against Backpage last December.
So here comes SESTA. The bill, drafted by Senate Republican Rob Portman of Ohio with 30 cosponsors from both parties, applies only to sex trafficking. It clarifies that Section 230 doesn’t protect online services that advertise such enterprises. It clears the way for states to file criminal and civil charges against the sites. It also amends a federal trafficking law to say that businesses or individuals can be prosecuted for “knowing conduct . . . that assists, supports, or facilitates“ such transactions, such as hosting online trafficking ads.
Sounds like a plan to me. But Sophia Cope, an attorney with the Electronic Frontier Foundation, told me the trafficking law contains other language that could allow an Internet business to be prosecuted for merely showing “reckless disregard.” A site operator who carelessly fails to delete a sex-trafficking post could face criminal charges and massive civil penalties, she said.
That sounds awful, but it’s the kind of thing that can be avoided by careful drafting. Any change to Section 230 must make it clear that Internet companies that make good-faith efforts to stamp out this stuff can’t be held liable if a little slips through.
Cope said such clarifications would make the proposal better, but even so the EFF would oppose changes to Section 230. For instance, it fears the law will cause a torrent of state litigation that could stifle small Internet companies. And sites might start barring lawful discussions of sexual matters, limiting their risk but stifling free speech.
On Tuesday, Google’s vice president of public policy, Susan Molinari, signalled that her company is ready to play ball. In an e-mail, Molinari said Google has “proposed language amending Section 230 that would give trafficked victims and survivors the right to civil litigation and enable prosecutors to hold bad actors accountable for their crimes.” I asked to see Google’s proposal, but it hasn’t been made public yet.
In short, Big Tech is looking to cut a deal. These are smart people who realize that sex trafficking is a dumb hill to die on. So if the Senate can get the language right, we’ll have a new, improved Section 230, with a little less freedom but a lot more justice.Hiawatha Bray can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeTechLab.