Let’s do some legislative math. Adding a bad bill to a good bill does not make a good bill better, it makes what could have been an invaluable tool for prosecutors and victims’ groups a convoluted mess.
Congress has a chance to pass FOSTA (or H.R. 1865, the Allow States to Fight Online Sex Trafficking Act), a widely supported, thoroughly debated bill to combat sex trafficking. Instead, some lawmakers are trying to sneak through SESTA (S. 1693, the Stop Enabling Sex Trafficking Act), which would make it riskier for companies to police sex trafficking content on their platforms.
Like many startups that would be affected by this law, we’ve got some concerns.
How did we get here?
In the House, the Judiciary Committee worked with law enforcement, victims’ groups, and the tech community to create FOSTA, a carefully crafted legislative solution to combat online sex trafficking and prosecute those who perpetrate these horrific crimes.
In the Senate, the Commerce Committee passed SESTA, an ambiguous and overly-broad bill that creates liability for websites that may unknowingly host illegal user generated content.
On Monday, the House Committee on Rules is considering H.R. 1865 with an amendment being offered by Congresswoman Walters that would attach SESTA to the existing House bill. If this amendment succeeds, the combined bill will be voted on this week. While both approaches attempt to stop sex trafficking—and, specifically, Backpage.com, a notorious trafficking website that can and should be shut down—these are not solutions that can be Frankenstein-ed together.
The false sense of urgency will force the House of Representatives to vote on language that has received no process in the Committees of jurisdiction. Attaching SESTA at the final hour deprives the language of any meaningful process.
An issue this serious and complex affects all online platforms. It’s especially bad for the startups which don’t have the resources to navigate nebulous legal liability or frivolous lawsuits. The internet is too important for Congress to rush through legislation without fully weighing all of the consequences.
FOSTA + SESTA = The Wrong Solution
When you take a closer look at the substance of the two bills, it’s clear why House leadership wants to attach SESTA without any public process whatsoever: it doesn’t add anything to help law enforcement go after bad actor. Instead, SESTA just makes it legally riskier for platforms to fight online trafficking and makes it easier to bring bad faith lawsuits against platforms.
A quick legal tutorial on federal trafficking law will help explain why adding SESTA to FOSTA won’t help law enforcement:
If prosecutors want to go after a platform for sex trafficking under current law, the must show that the company :
1) knowingly offered/advertised/recruited a person to engage in a commercial sex act and
2) knew that the person was either a minor or induced to engage in the commercial sex act through force, fraud, or coercion.
It’s difficult to prove beyond a reasonable doubt the second prong: that a defendant knew someone was a minor or being forced into prostitution. So the House Judiciary Committee decided to focus on the first prong, creating a new federal crime for intentionally facilitating prostitution. Prosecutors don’t need to try to prove that a website knew that the victim in a particular trafficking advertisement was a minor or coerced. Under FOSTA, prosecutors can go after websites that are intentionally promoting prostitution.
SESTA, on the other hand, lets prosecutors as well civil plaintiffs to bring cases against websites that “knowingly facilitate” trafficking. If you’re not sure what it means for a website to “knowingly facilitate” trafficking, you’re not alone. What we do know is that SESTA’s authors rejected language clarifying that websites should only be open to these cases if they have actual knowledge of specific trafficking content. As such, SESTA is specifically designed to create liability for websites even if they are not actually aware of any trafficking occurring on their platforms.
Because FOSTA allows prosecutors to charge websites that intentionally facilitate prostitution without having to show that the website knew that the person engaging in a commercial sex act is a minor or was forced, there’s really no reason that any prosecutor would rely on SESTA rather than FOSTA if both become law. As such, the only people who will likely use SESTA are plaintiffs’ attorneys looking to bring specious suits against websites that aren’t intentionally facilitating prostitution at all.
Assessing The Winners and Losers of a SESTA Amendment
If SESTA is added to FOSTA, the very people Congress are trying to help could be hurt.
- Victims. Tech platforms engage in content moderation to identify and stop objectionable content online. By creating new and unclear liability, SESTA could subject platforms that engage in content moderation to legal liability, undermining the work tech and victims groups have done on creating moderation best-practices and reporting.
- Law enforcement. Tech platforms monitor posted content closely for illegal activity thanks to CDA 230. When they see suspicious activity, they flag law enforcement and work with them to stop criminals. SESTA will undermine this cooperation.
- Consumers. Many of the platforms we use on a daily basis will be unsure about how they should operate in a post-SESTA world. Increased liability on platforms—particularly liability for content that platforms can’t control—will decrease investment in the sector and potentially bankrupt smaller companies.
- Trial lawyers. Existing liability protections do not immunize platforms from federal criminal charges, but they do prevent frivolous civil lawsuits. SESTA will create a new path for trial lawyers to bring lawsuits for quick settlements, fishing expeditions, and more.
- Giant social media platforms. With increased legal risk around user-generated content, only companies that can afford to hire the lawyers and content moderators needed to navigate ambiguous rules will be able to thrive, further cementing their advantages over small competitors out of the market.
Congress has the chance here to pass a good bill that helps law enforcement go after bad actors and protects the startups who are working in good faith to crack down on sex trafficking content on their platforms. But if lawmakers rush through a flawed proposal without fully considering the consequences, it’ll hurt companies’ efforts to help victims and will undermine the protections that gave us the Internet we have today.