Internet Law Scholar Eric Goldman Discusses the Inevitability of SESTA and Further Erosion of Section 230

photo of Eric Goldman, an internet law expert who spoke to FrontPage Confidential about the Stop Enabling Sex Trafficking Act (SESTA) and threats to Section 230 of the Communications Decency Act
Eric Goldman warns that SESTA -- and more constraints on Section 230 -- are on the way (photo via Wikimedia Commons)
Eric Goldman, a professor at Santa Clara University School of Law and an expert in internet law, predicts that the Stop Enabling Sex Traffickers Act will pass Congress -- after some alterations.

Technology law expert Eric Goldman, one of the most ardent foes of the Stop Enabling Sex Traffickers Act of 2017 (SESTA), explained in a recent interview with FrontPage Confidential that he now believes Congressional passage of SESTA is as inevitable as a Russian winter.

Goldman, a professor at the Santa Clara University School of Law and author of the influential Technology & Marketing Law Blog, testified on the dangers of SESTA at a U.S. Senate Commerce, Science, and Transportation Committee hearing in September. Essentially, SESTA will blow a hole in Section 230 of the Communications Decency Act of 1996, creating exceptions to the law’s grant of immunity to internet platforms for user-generated content.

SESTA’s proponents argue that the exceptions are necessary to fight online sex trafficking, the bill’s stated intent.  But in his remarks, Goldman warns that “SESTA doesn’t limit itself to bad actors” — i.e., that it applies to the entire internet. Sites will either have to engage in costly and prohibitive moderation of third-party content or scrap such moderation altogether, he said.

The likely result? More online sex trafficking, not less.

But the politicians on Capitol Hill largely remain unconvinced. SESTA has 36 co-sponsors in the Senate, while a companion measure in the House of Representatives has 169. The Commerce Committee has scheduled a hearing for November 8 to discuss any changes to SESTA’s wording. A vote of the full Senate could come shortly thereafter.

Sounding the alarm as he has done so often past, Goldman worried during his conversation with FrontPage Confidential that SESTA won’t mark the end of attacks on Section 230, but rather that passing it into law will set a Congressional precedent for undermining internet freedom.

Is SESTA inevitable? Is there’s any way to stop it?

It’s inevitable something’s going to pass Congress. The question is: what? If a compromise is struck where the opponents are sufficiently satisfied that they’ve gotten the best deal they can and decide not to oppose it further, that deal will pass very quickly.

What might that compromise look like?

That’s what’s being hashed out in the backroom discussions right now. The challenge is that the proponents aren’t all that interested in compromise. They’ve got the votes, so they feel they can take a pretty hard line. I’ve seen a dozen suggestions I thought could work as helpful alternatives to the existing proposal but still relevant to the proponents’ objectives. But I don’t know that any of them are going to be acceptable to the proponents.

My take is that everyone working on the bill understands that some things need to be fixed — that there are some specific things where the bill doesn’t say what the proponents think it says — and the proponents understand that. There are some things that nobody should be opposed to changing, or that everyone should support changing. But beyond that I don’t know.

What are the changes everyone agrees on?

One, everyone appears to agree that SESTA wasn’t intended to overwrite Good Samaritan protections — that providers shouldn’t be punished for trying to block or remove sex trafficking promotions and failing. However, there is not yet agreement on how to make this clear.

Two, everyone appears to agree that civil claims and state attorney general prosecutions should be required to prove a violation of the federal anti-pimping law as part of their claims. The current language doesn’t make that clear.

You talk about meetings behind closed doors. In general, the tech industry’s public response to SESTA has seemed muted. Why is that, do you think?

I agree with you that industry response has been less vociferous than we might’ve imagined. And as our baseline, we compare how the industry responded to SOPA [the Stop Online Piracy Act] and PIPA [PROTECT IP Act] debates from 2011 and 2012, where the industry went “nuclear” and made such a good job of staying in opposition that the bills died on a single day.

The reason why is very simple: Sex trafficking is a third-rail topic that most companies don’t want to touch. They’re also willing to throw Backpage under the bus, in a sense. So a lot of what you’re hearing from the companies willing to take a public position on this topic [is them] saying to Congress that “Backpage should suffer the consequences, but make sure we aren’t going to be affected by it.” On the other hand, you have to listen carefully, because almost every public discussion about a bill says, “We applaud the author’s intent, but…” And then the “but” is where all the opposition comes.

On the surface it might sound like there’s some support, but when you listen carefully, you can see that it’s pretty clear that there are problems that need to be addressed. If you go back to some of the hearings, I think the message got through to members of Congress that the industry isn’t supporting this bill, doesn’t think the bill does what it purports to do, and some of the members of Congress I think got that message really clearly and publicly acknowledged that they had some reservations.

But that doesn’t seem to have impeded the progress of the bill so far.

Your first question is: Is this going to pass? The answer is, it’s going to pass. The question is: What does it say? And the combination of the Senate and House hearings, to me, made it entirely clear that there was enough concern among the committee members to slow progress down, to give time for negotiations to take place. Without that response, the bills could have already been passed through the committees and on to the full chamber.

In your opinion, what does a post-SESTA world look like?

It’s a little bit premature to speculate about that. Because we don’t know its specific terms. And I’ve already taken some position about what post-SESTA will look like if no changes are made. But it’s almost — I won’t say it’s academic, but we’re certainly hoping that it’s not going to be the question on the table. We’re hoping there will be something more.

“Governments are having a really fantastic run of censorship against the internet. Pick any country and you can see how the censors are having a field day.” — Eric Goldman

Do you see SESTA as part of trend toward reining in the internet? Whether it’s in Europe or stateside — it might be a company like Reddit doing something to rein in hate speech….

When companies adopt private house rules about what content they’re willing to accept or not, that doesn’t bother me at all. That’s their prerogative. And I don’t see that as “censorship,” because it’s not being done by the state; it’s being done by private actors. However, we are seeing companies adopting private house rules under the threat of government regulation, or feeling compelled to do so by government dictates. We’re definitely seeing the rise of companies being deputized as content police by the government.

But when it comes to the government’s effort to regulate speech — that’s a perennial. Governments have been regulating speech for millennia. They’re very good at it. And governments are having a really fantastic run of censorship against the internet in the last few years. Pick any country, and you can see how the censors are having a field day.

As with any legislation, things are going to be challenged in court if SESTA passes. Are there any issues that you foresee , or is that too speculative at this point?

It is pretty speculative. I can say a few things, though. In general, Congress is free to reduce the scope of an immunity it has previously granted. That’s not a First Amendment violation, because Section 230 goes beyond what the First Amendment requires.

Can you elaborate?

Sure. Section 230 is not compelled by the First Amendment. Congress could eliminate Section 230 entirely without violating the First Amendment. I don’t think there’s any problem from a First Amendment standpoint if Congress chooses to create additional exceptions to a Section 230. And I don’t see where there’d be a really strong court challenge to that.

When Congress redefines the scope of the sex-trafficking crime, that could be subject to a constitutional challenge, just like the SAVE Act [Stop Advertising Victims of Exploitation Act] was subject to a constitutional challenge.

The government has never used the SAVE Act, right?

We’re not aware of it having been used yet.

Do you think Backpage’s challenge to the SAVE Act is the reason it hasn’t been used?

Yeah, I think that Backpage’s challenge to the SAVE Act probably deterred the government from pursuing it initially. But the resolution of that challenge, I think, leaves the SAVE Act in position to be used by the Department of Justice, if it chooses to.

Regarding your recent blog post about 1-800-LAW-FIRM suing YouTube for “material support” of terrorism, are you warning that Congress might look into that if courts continue to interpret Section 230 as immunizing sites against lawsuits like that one?

To me it seems inevitable that if SESTA or some variation of it passes, victims of terrorism will stand up next in line and ask Congress for identical relief. There’s many good reasons not to carve up Section 230 like Swiss cheese. Honestly, even the first hole in Section 230 may be the one that causes it to fail to function. But yeah, there are many victim-advocacy groups that would be very interested in pursuing their own exception to Section 230, and it’s difficult to draw principled lines between different victim-advocacy groups.

Just a couple of thoughts about that: First of all, the antiterrorism lawsuits run into the First Amendment more squarely than the victims-of-sex-trafficking lawsuits. That’s because according to Backpage v. Lynch, promotions for sex trafficking are never protected by the First Amendment, but much of what terrorists might say in fact would be protected by the First Amendment. Even if Section 230 fails in both cases, there may not be the same results.

The other thing that’s noticeably different is what we’ll call the causation problem — that victims of sex trafficking may have a better claim to argue that an online site caused their harm because the promotion was of them individually. Whereas in the anti-terrorism context, it’s a lot harder to show how videos of ISIS beheading victims led to the death of someone who got bombed in Paris.

What other areas do you see as possibly eroding Section 230 ? 

The pharmaceutical area is a promising one. There have been a number of victims who have complained that drugs are advertised online but they can’t go after the platforms that allow those drug advertisements.

Another obvious area will be the nonconsensual pornography area. There has been legislation proposed that would expressly make an incursion into Section 230.

Those are just a couple that jump to mind, but really there are thousands of victim-advocacy groups out there, and all of them would like to not be restricted by Section 230.

If you don’t already follow Eric Goldman on Twitter, you really ought to. And all the cool kids subscribe to his Technology & Marketing Law Blog.

About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.