Supporters of Section 230 of the federal Communications Decency Act (CDA) played defense on Capitol Hill Tuesday during a two-and-a-half-hour hearing before the Senate Commerce, Science, and Transportation Committee on proposed legislation to amend the federal statute. The bill under consideration would revoke the blanket immunity that protects interactive websites when it comes to content posted by their users.
Backers of the Stop Enabling Sex Traffickers Act of 2017, or SESTA, argue that the change is necessary to stem what they contend is a raging tide of child sex trafficking. Defenders of Section 230 counter that the amendment is too broad and will chill free expression and entrepreneurship online.
SESTA co-sponsors Senator Rob Portman of Ohio and Senator Richard Blumenthal of Connecticut appeared as the first witnesses before the committee. As with other supporters of SESTA, the online listings site Backpage.com was their whipping-boy and the raison d’être for the new legislation.
In January, Portman’s Permanent Subcommittee on Investigations issued a scathing report on Backpage, alleging that the site “knowingly” facilitates sex trafficking. But in his remarks to the Commerce Committee, Portman drew no comfort from the fact that Backpage shuttered its adult section on the eve of the PSI’s January 10 hearing into the company’s practices. Rather, his ire focused on the fact that federal and state courts alike have been nearly unanimous in finding that Section 230 shields Backpage from civil claims and state prosecution.
The Ohio Republican called sex trafficking “a stain on our national character” and reused a tired trope that the practice has “moved from the street to the smart phone.” He mentioned a case in which he claimed a child was sold by her own father 20 times a day online and opined that Section 230 “has not kept up with the times.”
Addressing SESTA’s chorus of critics, which includes nearly all of the tech industry, Portman claimed that while “we all believe in free speech,” the “safe harbor for the sex trade” must be eliminated.
Blumenthal echoed his colleague’s language, insisting that SESTA uses targeted language and would not cause a “deluge of frivolous lawsuits” as many in the tech industry fear.
Senator Ron Wyden of Oregon, one of Section 230’s authors, countered the bluster, asserting that the law should remain intact. Wyden, a Democrat, pointed out that Section 230 does not shield websites from federal criminal statutes and implied that his peers were acting like Congressional Chicken Littles.
The choice, Wyden said, is clear:
“Do we react like politicians, mindlessly bludgeoning deep pockets, driving away innovation and utterly failing to stop the worst behavior, but simply just drive it underground? Or does the Congress act with resolution and purpose, providing law enforcement with the resources to effectively attack this horrible scourge that is far older than the internet and we end up actually aiding the victims of this horrendous crime?”
It was far better that the internet remain, as Wyden and others intended when the CDA passed in 1996, a platform “open to the world…exposed to sunlight and the law.” Section 230 was created so that gutsy startups could spend their seed money on engineers and programmers instead of lawyers. As a result, the legislation helped foster “a trillion dollars” of economic activity and U.S. dominance of the internet.
“The net is our foundation of internet laws,” Wyden said. “Which kept lawyers and politicians and tax collectors from hobbling innovation and hobbling growth.”
Wyden easily outreasoned Portman and Blumenthal. But an emotional appeal is often the strongest, which is why the testimony of Yvonne Ambrose stood out during the hearing.
Ambrose’s sixteen-year-old daughter Desiree Robinson was brutally slain in 2016, her throat slit in a garage located in Markham, Illinois, a Chicago suburb, allegedly by 32-year-old Antonio Rosales, who has been charged with murder. According to a report in the Chicago Tribune, prosecutors say Rosales purchased sex from Robinson once, and that when she returned a second time the same day for another encounter, he killed her. Rosales has pleaded not guilty.
In her moving testimony, Ambrose blamed Section 230 and Backpage, claiming that Rosales found her daughter via a photo posted to the classified site under the title, “New girl in town looking to have fun.” Ambrose filed suit against Backpage in May. The following month FBI agents arrested 33-year-old Joseph Hazley and charged him with sex trafficking of a minor. Federal authorities allege that Hazley placed the ads on Backpage and drove her to her fateful encounter with Rosales.
Ambrose’s account of her daughter’s murder brought to the fore a salient issue, one that Section 230 directly addresses: Who should be accountable for a user’s posts and the harm that results from them?
“Instead of stopping bad actors, SESTA will help them proliferate,” Santa Clara University law professor Eric Goldman.
It’s the same question that arises when terrorist organizations use Twitter to spread propaganda, or when murderers stalk victims via Craigslist, or when the gang rape of a 15 year-old girl is livestreamed on Facebook.
California Attorney General Xavier Becerra participated in the second panel of speakers, testifying about the ongoing criminal case against Backpage. Most recently, on August 23, Sacramento Superior Court Judge Lawrence Brown threw out counts related to pimping but allowed charges involving alleged money laundering and wire fraud to go forward.
Becerra noted that he was a U.S. Representative from California in 1996 and voted for the CDA at the time. But he told the hearing that only SESTA would give him the tools to go after websites such as Backpage. He downplayed the fears of many in the tech industry that prosecutors would seek to indict them as well, claiming SESTA offered a high bar to prosecution.
Other speakers disagreed.
During her testimony, Abigail Slater, general counsel for the Internet Association, a trade group that represents a vast array of tech companies that includes Amazon, Google, and Facebook, explained why her industry finds SESTA’s language so troubling.
SESTA, Slater argued, creates a “vague knowledge standard” for internet companies that might drive them to curtail their efforts at moderating comments and other third-party content, for fear that such efforts could be interpreted as “knowing conduct.” Slater said the tech industry is concerned by the “overly broad and uncharted state jurisdiction” SESTA would grant, as well as by the possibility of frivolous lawsuits that do nothing for victims of sex trafficking.
The comments of Professor Eric Goldman of the Santa Clara University School of Law were more emphatic. Goldman, author of the influential Technology and Marketing Law Blog, predicted that SESTA would have the opposite of its intended effect and would lead to an increase in “socially harmful content” and online ads involving sex trafficking.
“Instead of stopping bad actors,” said Goldman, “SESTA will help them proliferate.”
He went on to describe how Section 230 eliminated a dilemma regarding the way website operators were to moderate sites that might have millions of postings, each one of which could expose a company to being sued or even indicted criminally. Pre-Section 230, website owners could lessen their liability by offering only minimal moderation or “costly and cumbersome editorial procedures.”
Section 230 made clear that websites are not to be treated as the “publisher or speaker” of content provided on the site by a third party. Its safe-harbor provision allows companies to remove offensive content without fear that to do so would create evidence that they had “knowledge” of odious content and were therefore liable for it.
Faced with SESTA, said Goldman, websites might cease moderation efforts altogether in order to avoid blame, leading to “the expansion of online sex-trafficking promotion.”
Blumenthal challenged Goldman, asking skeptically if he really believed that SESTA would cause sex trafficking to proliferate.
Goldman replied in the affirmative, stating that “legitimate players” are already taking steps to reduce sex-trafficking ads on their sites, and with them, potential liability. If such companies decide they are better off shutting down all of those efforts across the board, then the ads will migrate to other sites — a situation that would create “an environment where there’s more places for that activity to occur.”
Blumenthal shot back that he had a “higher opinion of the industry” than Goldman did, and that “most of these companies want to do the right thing.”
Goldman responded that there were a large number of smaller players with smaller infrastructures that will have to decide if they can do the work Blumenthal is calling for them to do.
Those “outliers,” Blumenthal countered, will be prosecuted under SESTA.
There were, however, a few senators who appeared to seek a middle ground.
Chief among these was committee chairman John Thune of South Dakota, who stated in his opening remarks that though Backpage “was the impetus” for SESTA, the bill is not the “Anti-Backpage.com Act of 2017.” Thune noted that some have cautioned that putting sites such as Backpage out of business will only make the jobs of law enforcement harder when it comes to fighting sex trafficking.
“Given this challenge,” he concluded, “I believe the cooperation of the tech industry will be critical to any effective solution this committee and our Senate colleagues hope to forge.”
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