Tech Giants Abandon Section 230 Ship, Endorse SESTA Compromise That Imperils Internet Freedom

New York Times photo of Titanic lifeboats hauled aboard the Carpathia, April 18, 1912
No need to worry. The big boys boarded their lifeboats. For you smaller tech firms, it was a pleasure sailing with you. (New York Times photo of Titanic lifeboats hauled aboard the Carpathia, April 18, 1912, via Wikimedia Commons)
The powerful Internet Association abandons opposition to Stop Enabling Sex Traffickers Act (SESTA), incurring the wrath of online free-speech advocates and analysts.

One thing you can say about the Internet Association, which reps such tech-industry giants as Amazon, Google, Facebook, and Twitter: It ain’t Captain Smith on the Titanic.

In other words, it isn’t going down with the ship. At least not willingly.

On Friday, just days before the scheduled November 8 hearing on proposals to amend the free-speech train wreck that is the Stop Enabling Sex Traffickers Act of 2017 (SESTA), the trade group did a 180 on its opposition to the bill, stating that it would back the compromise version of SESTA  that the U.S. Senate Committee on Commerce, Science, and Transportation released with fanfare that same day. [11/8/17 Editor’s note: The committee unanimously approved the compromise version of SESTA at its hearing this morning.]

Invoking the overhyped issue of sex trafficking, the association abandoned its First Amendment principles to accept a version of SESTA with only minor alterations.

In a press release, Internet Association president and CEO Michael Beckerman called the alterations “important changes” that will “grant victims the ability to secure the justice they deserve” and protect “good actors” in the internet “ecosystem.”

Tech sites including Gizmodo and Techdirt, as well as the nonprofit Electronic Frontier Foundation reacted with disgust to IA’s announcement, observing that the changes did little to ameliorate SESTA’s attack on Section 230 of the Communications Decency Act of 1996.

Section 230, sometimes referred to as the “fairy godmother of the internet,” established the principle that internet platforms cannot be held liable for third-party content that others publish to their sites.

It protects, among others, YouTube from claims of materially supporting ISIS when ISIS uploads its videos there, Facebook from claims of abetting cyberstalking, Twitter from libel suits stemming from offending Tweets, and so on.

But it is the adult ads that listings giant Backpage.com hosts, and, more specifically, the claim that some of them involve sex trafficking that motivates SESTA’s backers.

State and federal courts alike have consistently found that Section 230 shields Backpage from prosecution and civil liability. SESTA supporters intend to put an end to this — and, in so doing, trample on the commitment to free speech that has made America’s tech industry a model for the world.

Techdirt editor Mike Masnick railed against the Internet Association in a blog post, calling the IA’s support of SESTA “a shameful move” in which the association “sold its soul.”

Noting that the new-and-improved SESTA would hold websites responsible for “knowingly assisting, supporting, or facilitating a violation” of sex-trafficking statutes that stemmed from third-party content, Masnick writes that the vague wording will compel moderators to censor material rather than face possible liability.

“[Y]ou have now created what is effectively a notice-and-takedown system for all kinds of content,” Masnick argues. “Someone just needs to claim that your site ‘facilitates’ sex trafficking, and now you have ‘knowledge.’ Thus, the strong incentive will be to remove, remove, remove.”

The problem, as Masnick and others recognize, is that “knowledge” is a standard loose enough to snag any website that has a general awareness that something bad may be occurring on its site.

Also, under the revamped SESTA, state attorneys general are given license to go after a website in civil court, where the burden of proof is lower than it is in criminal proceedings — i.e., a preponderance of the evidence, as opposed to reasonable doubt.

The EFF echoed many of Masnick’s concerns, calling out SESTA’s  Orwellian retroactivity provision, under which liability “would arise even when the relevant conduct happened before the enactment of the Act” — bringing about “significant due process implications.”

On his Technology & Marketing Law blog, Santa Clara University law professor Eric Goldman called the amendment only a slight improvement to an otherwise bad bill. Big tech companies will have the resources to weather the storm, he he predicted. The smaller fry, not so much.

Writes Goldman:

SESTA will almost certainly materially change the behavior of smaller online services that sex traffickers could use to promote victims. This could include online classified ad sites, online dating sites, and many others. Those sites will almost certainly feel like they face an existential risk from litigation, and they may (perhaps legitimately) fear their criminal exposure. Thus, I would expect those sites to build new and aggressive content moderation practices, or if it’s too costly to do so (or they fear the risks remain too high), to exit the industry….

In a post-SESTA world, online services will more aggressively use automated filters to remove all sex trafficking promotions and anything that might resemble such promotions. In light of the high stakes for making mistakes, I expect we’ll see significant over-filtering of legitimate content. Combined with other ways that online services will feel compelled or coerced to adopt broad filtering, over time we should expect that the machines will munch a wide range of legal and socially beneficial content-all done automatically, with no due process, and with no recourse on the part of filtered speakers.

The smart money will take Goldman at his word. He did, after all, predict the current events in a recent interview with Front Page Confidential that was published the same day SESTA 2.0 was unveiled.

In his Son-of-SESTA analysis, Goldman opines that the retroactivity provision is “probably unconstitutional.”

On the other hand, he believes the U.S. House’s companion legislation to SESTA, which he finds even more pernicious than the Senate iteration, might end up being incorporated into the final version.

So the IA big shots may feel safe in their little dinghies, but they’re far from land. And the sharks are circling.

Click the link below to read Mike Masnick’s recent Techdirt take:

“Internet Association Sells Out The Internet: Caves In And Will Now Support Revised SESTA”

The Electronic Frontier Foundation’s statement:

“Senator Thune’s Bill Is Just As Bad As SESTA”

Eric Goldman’s evaluation:

“Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill”