The debate over altering a bedrock law governing the internet in the name of curbing sex trafficking was polarizing. The final vote was not.
The Senate Wednesday voted 97-to-2 to approve changes to the law that has shielded website operators from liability for content posted by others. The Stop Enabling Online Sex Trafficking Act was previously approved by the House and now goes to President Trump, who endorsed it earlier this month.
The legislative effort inspired fervent opposition along the way from Google, free-speech stalwarts, and sex workers. Supporters of the bill say it will allow victims of online sex trafficking to legally pursue websites that facilitate trafficking, Until now, those efforts have been thwarted by the liability shield in Section 230 of the Communications Decency Act. The bill was proposed after a California judge dismissed criminal charges against Backpage.com and its CEO over online ads featuring underage girls because of Section 230.
Opponents fear that the bill messes with a key ground rule that has allowed the internet to flourish. “Section 230 we’ve been saying for a long time is responsible for creating the modern internet that we know and love—not to say that the current Internet doesn’t have problems,” says India McKinney of the Electronic Frontier Foundation. But, she says, the law provided the “the legal buffer that was needed to create these online communications platforms.”
Approval of the bill highlights tech’s diminishing clout in Washington, following revelations about Russian meddling in the 2016 election and concerns about respect for users’ privacy. Google lobbied heavily against early versions of the bill, but muted its criticism in recent weeks as the bill gathered momentum following testimony by victims’ families.
Tech companies need to be held accountable for “breaches of trust and moral obligation,” cosponsor Senator Richard Blumenthal (D-Connecticut) said in a press conference held as the votes were still coming in. “We’re not going to simply abide by the reassurance, ‘Trust us. We’ll do the right thing.’ … There’s a growing feeling that there’s need for stronger rules of the road when it comes to accountability in this industry.”
Google, which has funded nonprofits that both supported and opposed the bill, declined to comment. In a blog post from September about an earlier version of the bill, Susan Molinari, vice president of public policy, emphasized Google’s investment in efforts to curb sex trafficking, but argued that the bill could cause smaller companies to stop moderating sex trafficking. “This would be a disaster,” she wrote.
The Internet Association, a trade group representing many tech companies including Google, said in a statement following the Senate vote that the industry “shares the goals of lawmakers who want to put an end to trafficking online,” but focused on the urgency of keeping tech’s liability shield intact. “IA will continue our work to preserve Section 230 and prevent attempts to weaken this crucial protection protection,” the group said.
On its way to final passage, the bill was altered several times, including an amendment in December that created a new prostitution crime and then a last minute amendment in February that restored the ability of state law enforcement and private plaintiffs to go after companies like Backpage.
The new crime, intent to facilitate prostitution, was introduced under the Mann Act, the infamous 1910 law known as the White Slavery Act, which critics argue has been enforced in a discriminatory way. Roping in the Mann Act alarmed activists for sex workers, whose voices have dominated coverage of the bill in recent weeks.
The bill will create an exception Section 230 for enforcing federal and state criminal and civil law related to sex trafficking if a website operator “knowingly” assists, supports, or facilitates sex trafficking.
Opponents say the bill will change the way outside content is moderated on the internet, but they don’t agree on how. Some say the “knowingly” standard will push tech companies to stop all moderation efforts for fear of finding something and being held liable. Other say the bill will result in extreme censorship as companies scour their platforms for any content related to sex trafficking, harming sex workers in the process.
Eric Goldman, a free speech scholar and professor at Santa Clara University of Law, who testified against the bill before the Senate, says the bill will create what he calls the “Moderator’s Dilemma,” pushing tech companies towards two extremes in order to avoid the liability that comes with the “knowing” standard. Sites will either censor more content to lower their risk of knowing about sex trafficking, or they will dial down moderation in an effort not to know. That scenario could lead to “the rise and growth of problematic content of all types,” he says.
Goldman fears the bill will roll back internet law 22 years, to before 230’s passage, when some sites did a lot of content moderation and others virtually none. Congress set a dangerous example by believing it could just target content related to sex trafficking, he says. Congress said “this was a rifle shot and a surgical,” when “at every opportunity [opponents] tried to make it clear that was unrealistic.”
Kate D’Adamo, a partner with the consulting firm Reframe Health and Justice, says sex workers are concerned that their legal conversations about subjects such as “bad date lists” about dangerous clients, will be forced off the internet.
“We know how this works out,” she says. “We know how profiling happens. It’s trans folks, it’s communities of color, it’s the most economically marginalized spaces, people who, even in the sex trade, already experience the highest rate of violence. It’s going to disproportionately impact the people who are disproportionately impacted already.”
Much of debate over the bill was over the threshold for liability. Evan Engstrom, executive director of Engine, a nonprofit funded by Google that represents smaller startups, says “knowingly” is ambiguous and could lead to lawsuits. Even the Department of Justice expressed concern over the term at one point.
Engstrom believes the bill’s success in amending Section 230 could also inspire other legislation to weaken the liability shield. “There may be efforts to regulate 230’s protection in terms of online hate speech, terrorist content, or defamation,” he says.
But Mary Leary, a former prosecutor and law professor at Catholic University, says concerns about moderation or a flood of lawsuits run counter to the way that other industries have responded to anti-sex-trafficking laws. In the travel and hotel markets, “We haven’t seen a massive industry-wide effort to not ‘know.’ In fact, we’ve seen them becoming leaders, saying, ‘I am going to engage in reasonable efforts like training my staff and developing protocols.’”
Supporters like Leary expect both state prosecutors and victims to take advantage of the bill to pursue cases against companies like Backpage. The National Association of Attorneys General wrote letters in support of this legislation, and has written a letter to Backpage, telling the company that it had facilitated trafficking. The bill also received support from the National District Attorneys Association.
Yiota Souras, senior vice president and general counsel for the National Center for Missing & Exploited Children, says the bill could deter future online traffickers. Without the law, “bad actors online would continue to see Backpage as a model of how to make millions of dollars from illegal activity (trafficking) with impunity,” she says.
No one seems happy about the Mann Act aspect of the final version of the bill, an amendment that was added late in the process that WIRED reported was the result of a machination from a nonprofit supported by Google. “If tech companies didn’t like that, maybe they shouldn’t have supported [an earlier bill that included the provision], because that’s what came out of it,” says Leary.