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Why the tech industry is worried about a bill targeting sex trafficking

Rob Pegoraro
Contributing Editor
Photo: Bloomberg

It’s hard to think of a tougher policy sales pitch for the tech industry than its argument against a bill called the Stop Enabling Sex Traffickers Act (SESTA).

Advocates for it have a simple request: Do something to stop the plague of online sex trafficking! Opponents are stuck with a more nuanced request on behalf of companies that are not always too beloved on Capitol Hill: That bill might make life dicier for social-media sites.

Major changes to the Communications Decency Act

The bill would make two significant changes to the 1996 Communications Decency Act’s Section 230, which currently says a site can’t be held legally responsible for what its users post there, and that a site moderating or screening those contributions doesn’t erase that immunity.

Yes, you can blame “CDA 230” for allowing comments sections to exist, but it’s also enabled the entire category of social media to flourish.

One part of SESTA would allow civil lawsuits and state prosecutions against sites that foster sex trafficking—that is, sex for money performed by children or adults subject to “force, fraud or coercion.” Another would criminalize “knowing conduct” by a site that “assists, supports, or facilitates” those crimes.

“Congress must stop allowing websites to promote and profit from sex trafficking,” said Sen. Richard Blumenthal (D.-Conn.) at a Sept. 19 Senate Committee on Commerce, Science and Transportation hearing.

‘SESTA would introduce new legal risk’

Internet Association general counsel Abigail Slater expressed a different perspective minutes later, suggesting the law could hurt sites that might unintentionally benefit from sex trafficking but have no practical way of stopping it.

“SESTA would introduce new legal risk not just for internet services that do not knowingly and intentionally facilitate illegal conduct, but also create risk for an incredibly broad number of innocent businesses,” said Slater, whose trade group represents Twitter (TWTR), Google (GOOG, GOOGL), Facebook (FB), and other tech giants.

The reality, as ever, is more complicated. SESTA would indeed weaken a key piece of law that enables sites to give users a voice online without fear of endless litigation, even as current laws await use by prosecutors against the cretins trying to profit from child prostitution and sex slavery.

But while sites that rely on “user generated content”—especially those smaller ones that can’t afford to keep squads of lawyers on retainer—fear eroding that protection, they and the groups speaking for them in Washington seem resigned to accepting some form of this law.

‘A dollar has become more important than a human life’

The hearing last week provided compelling testimony for the bill that Sen. Rob Portman (R.-Ohio) introduced Aug. 1.

Yvonne Ambrose tearfully recounted how her 16-year-old daughter Desiree Robinson was raped and killed by a man who had responded to a listing that her pimp had placed for her on the classified-ads site Backpage.com.

“She screamed for help, and there was no one around to help her,” Ambrose said. And yet, she said, she could not hold that site responsible for profiting from her child’s exploitation. “Somehow, a dollar has become more important than a human life.”

What do current laws not do?

Federal criminal law doesn’t go away because of CDA 230, but courts still must decide where that law’s immunity ends. And multiple witnesses at last week’s hearing said it doesn’t provide enough guidance.

“Courts have struggled and failed to reconcile the CDA’s narrow immunity,” said Yiota Souras, general counsel for the National Center for Missing & Exploited Children.

California Attorney General Xavier Becerra observed that a state court threw out sex-trafficking charges that his office had brought against Backpage. “We’re fighting with two hands tied behind our back,” he complained.

That site has long been public enemy No. 1 for opponents of online prostitution. Well after Craigslist shuttered its “Adult Services” section, Backpage kept its own comparable category until January; the same types of listings now run elsewhere on the site.

The hearing, however, did not mention a newer law, 2015’s Stop Advertising Victims of Exploitation Act, that bans sex ads involving minors or coerced individuals—and which has yet to be invoked by a prosecutor, even though it was written with Backpage in mind.

“I don’t see any defect that’s made it unviable,” said Alexandra Levy, an adjunct professor at the University of Notre Dame’s law school, in an e-mail.

She noted that if Backpage actually commissioned ads for sex services—something the Washington Post found that it did in a July investigation—then the CDA wouldn’t protect it.

Backpage did not respond to a request for comment submitted through its site Wednesday.

Why SESTA makes sites nervous

Opponents of this bill say it will subject well-meaning sites to abusive or frivolous litigation. And while the resulting legal bills might not leave much of a dent in a Google or Facebook, they could easily bankrupt smaller firms.

“A single bad lawsuit can totally destroy a company,” said Evan Engstrom, executive director of the startup-advocacy group Engine, at a panel discussion in Washington Thursday.

They also argue that SESTA’s “knowing conduct” clause could incriminate sites that try to moderate user input—since, in theory, that meant they should have known of attempts to advertise sex services. They might find it safer, as Goldman said in the hearing, to give up moderating entirely.

Mike Masnick, founder of the tech-policy site Techdirt, noted that his site, like many, attracts a massive amount of comment spam that often links to illicit offerings, and automated filters can’t catch it all.

“We’ve seen fairly clever spammers posting perfectly legit and on-topic comments… but with links to whatever it is they’re spamming,” he wrote in an e-mail. “It’s a legit fear.”

SESTA backers, however, say they won’t yield on core principles. “We will not gut a bill that has broad and diverse Senate support with 31 cosponsors,” Portman spokesman Kevin Smith wrote in an email.

That leaves opponents of the bill hoping to soften its edges. At the Senate hearing, the Internet Association’s Slater asked legislators to clarify the “knowing conduct” rule and only allow lawsuits against sites that “acted with knowledge and intent.” Engine’s Engstrom made similar suggestions at Thursday’s panel.

In a conversation afterwards, Engstrom sounded reasonably optimistic about getting those changes. But SESTA features a widely loathed opponent, a goal virtually everybody supports, and a tech lobby that now finds itself increasingly questioned if not resented in Washington. It may be the rare tech-policy bill that Congress easily passes.

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Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.