Silicon Valley has decided to throw its support behind the so-called Stop Enabling Sex Traffickers Act of 2017 (SESTA) that is sure to have enormously damaging consequences for the internet. Previously, most big tech giants opposed the legislation. But this week, Congress started intimating that they might need to bring more regulations to tame the online beast. And suddenly, that one bill wasn’t looking so bad.
This browser does not support the video element.
The Stop Enabling Sex Traffickers Act of 2017 (SESTA) is one of those bills that presumably has good intentions, but its execution would come with unintended consequences. No business wants to enable or be perceived as enabling sex trafficking. But the major players in Silicon Valley like Amazon, Google, Facebook, Microsoft, and Twitter all voiced their opposition to the legislation under the cover of the Internet Association back in August. On Friday, they changed their minds.
In a statement, Internet Association President & CEO Michael Beckerman wrote:
Internet Association is committed to combating sexual exploitation and sex trafficking online and supports SESTA. Important changes made to SESTA will grant victims the ability to secure the justice they deserve, allow internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem.
Beckerman went on to praise certain senators by name and say that the Internet Association can’t wait to spend time working with them in fighting exploitation. He did not specify what “important changes” were made to the bill that caused the Internet Association to change its mind. When Gizmodo spoke to a spokesperson for the organization on the phone, they told us they wouldn’t be issuing any further comments beyond their statement at this time. (You can see the full text of the amended version of SESTA here.)
SESTA was inspired in part by the case of Backpage.com in which executives of the site were arrested on charges of pimping a minor, pimping, and conspiracy to commit pimping. It’s a complicated case that has had ripple effects, but the most important thing to know is that Backpage’s “adult” section was being used for prostitution. Backpage operated under the presumption that it would be protected from liability for what users put on its site by what’s commonly known as “Section 230.” That law is the reason that so many websites and social media platforms can operate the way they do. With some exceptions, Section 230 allows a site like YouTube to avoid legal responsibility for content created by others. It’s difficult to overstate how important the law is to the way the internet operates, and it provides a lot of breathing room for innovation.
In short, SESTA is a sloppily written attempt to weaken some of Section 230 to allow victims of sex trafficking to sue a website that supports or otherwise assists in the act in any way whatsoever. It would also open online companies up to state criminal prosecutions for user-generated content.
When its first version appeared in August, the Internet Association along with other trade groups protested its proposals because they understood it was opening up online companies to extreme liabilities for practically anything that was uploaded to their services. Not only would they have to defend themselves through costly legal processes for content that was uploaded, they’d likely have to engage in mass removals of legitimate content in the interest of playing it safe. The way the bill was written made it difficult for them to even self-monitor the content on their sites because to do so would mean that they are “knowingly” hosting illegal content. It was a catch-22 situation that would be difficult and transformative for major corporations, and almost impossible for new companies with limited funds.
Legal scholars and internet freedom activists chimed in with their own analysis and everyone concluded that this bill could be ruinous for the world wide web. On one hand, broad overreach by sites attempting to limit their liability would be bad. On the other hand, many sites would back off the moderating they already perform out of fear that they would create legal proof that their platform was being used for unintended nefarious purposes.
The Internet Association’s reversal on its position regarding SESTA came just hours after Senator John Thune introduced an amended version of the bill on Friday. Among the alterations that were proposed, the language, “The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation,” was changed to read, “The term ‘participation in a venture’ means knowingly assisting, supporting, or facilitating a violation.” The new language is a little more specific in its definition and removes the “by any means” wording that would certainly trigger a deluge of legal action.
But the Electronic Freedom Foundation quickly pointed out that the amendments change very little. In a blog post, an EFF legal representative writes:
As we explained [before], the words “assist, support, or facilitate” are extremely vague and broad. Courts have interpreted “facilitate” in the criminal context simply to mean “to make easier or less difficult.” A huge swath of innocuous intermediary products and services would fall within these newly prohibited activities, given that online platforms by their very nature make communicating and publishing “easier or less difficult.”
Additionally, both Sen. Thune’s bill and the current SESTA language oddly place this new liability within a new definition of “participation in a venture.” Importantly, this would do nothing to change the existing state-of-mind standard in the last paragraph of Section 1591(a), which provides that sex trafficking liability attaches when an individual or entity acts in reckless disregard of the fact that sex trafficking is happening. This means that online platforms would be criminally liable when they do not actually know that sex trafficking is going on—much less intend to assist in sex trafficking.
Among other things, the EFF also takes issue with the retroactivity provision that’s present in both bills. Not only would it hold companies legally responsible for any sort of promotion of sex trafficking on their platforms that occurred before the bill was passed, but because of its implications regarding due process, it’s unclear if the bill would even be legally viable in the long run. Other internet activists have echoed the EFF’s concerns.
So, if the Thune amendments don’t solve SESTA’s problems, why is the Internet Association (meaning all of the big tech companies) suddenly throwing its support behind the bill?
Well, the biggest thing that changed this week is that lawyers for Twitter, Facebook, and Google appeared before Congress in three separate sessions to talk about those companies’ facilitation of Russian interference in the 2016 election and ongoing issues of online harassment. As usual, Silicon Valley wasn’t exactly upfront about accepting any responsibility or admitting that its products have a problem. This didn’t fly with some senators. At one point, Senator Diane Feinstein told the tech giant stand-ins:
You’re general counsels. You defend your company. What we’re talking about is cataclysmic change. What we’re talking about is the beginning of cyber-warfare. What we’re talking about is a major foreign power with the sophistication and ability to involve themselves in a presidential election and sow conflict and discontent all over the country…
We are not going away, gentlemen...
Because you bear responsibility. You created the platforms … and now they’re being misused. And you have to be the ones who do something about it – or we will.
Corporate giants like Apple and Microsoft know that they probably have the resources to fight through the troubles that SESTA would likely bring, even though the smaller guys don’t. They also know that Congress doesn’t know very much about technology and legislation like this is primarily designed to project an appearance of doing something about a problem. Congress needs to show it’s doing something, there’s a steady anti-tech drumbeat, and misguided regulations are looking more inevitable.
In all likelihood, the Internet Alliance sees SESTA as a chance of showing politicians that it’s cooperating and hopefully legislators will get distracted by the next shiny object that comes along. The very fact that more senators continue to sign on to sponsor this bill, despite being told by experts of every stripe that it’s bad, thoroughly demonstrates that these lawmakers aren’t taking their job seriously. Silicon Valley’s refusal to own up to its failures and just show some progress in addressing those failures demonstrates that it’s not taking its responsibilities seriously either. So what we’re left with is all parties accepting a calamitous piece of legislation that’s purportedly aimed at addressing an issue that everyone agrees is bad, in an effort to go home and call the internet fixed. Our political representatives and our corporate overlords are all too happy to work together in being completely ineffective.