Bridge Span 18-2: SESTA Senselessness

Yesterday the Senate voted to approve legislation that will likely become a marker of a turning point for the internet ecosystem. The legislation, now on its way to the President’s desk, is known as SESTA (Stop Enabling Sex Traffickers Act of 2017) and allows for politicians to claim that they somehow helped stop sex trafficking when a closer look shows they have accomplished nothing except harm to the very functioning of the internet and the freedoms we have all enjoyed.

To say the very least, reducing and trying to eliminate sex trafficking is the right thing to do. Survivors, law enforcement officials and victim’s advocates all share horrendous stories that demonstrate the depravities that one human is willing to visit on another. The goal has never been wrong. The way the goal has been attempted wrong. That politics have governed the outcome, rather than thoughtful and deliberate public policy, is wrong.

The new law functions by tearing apart Section 230 of the Communications Act, which protects internet companies from lawsuits over user-generated content. So, what does section 230 really do? Imagine you open monthly flea market in your hometown and a person rents a booth from you. Rather than selling baseball cards as they told you and registered to do, they are selling illegal opioids without your knowledge, intentionally acting to escape your notice. You should be held liable? Hardly. Should FedEx be held liable if packages of cocaine are shipped via their trucks without their knowledge or consent? No.

Section 230 made sure that internet services are not responsible for the bad deeds and words of others said on their platform but without their involvement. Be a bully and you pay the price, not the web service. That sort of personal accountability used to be a value the GOP embraced.

Here is what America is really getting:
• SESTA was opposed by the Department of Justice and the House Judiciary Committee stating that the law will not help prosecutors and will actually complicate future investigations, undercutting its supposed value.
• To that point, an attempt to make the law workable by providing $20 million to fund criminal prosecution of websites that facilitate trafficking was rebuffed by the supporters.
• Worse, the Department of Justice has also warned that the legislation is unconstitutional, meaning that time and taxpayer money will be invested in trying to defend the indefensible.
• The Wall Street Journal has made clear that the law will be a bonanza for trial lawyers and legally adventuresome state’s attorneys general by making it easier to sue rich, and these days politically unpopular, web platform companies.
• The law actually discourages legitimate websites from keeping an eye on user content to protect against any form of abuse, as the law makes clear that monitoring for harmful content no longer protects a company and in fact exposes it to greater risk. In the end, the online world will become worse than the supporters of this law claim it is now.
• Or the flip side, stricter monitoring at the behest of the federal government may ensue and web sites might censor speech on them out of fear of liability. Such monitoring will only lead to marginalized voices being eliminated, and for all voices to be further restricted by government. Are we really in favor of that or do we prefer the freedom of speech free of persistent government oversight?
• The law erects a new barrier to entry perfectly suited for keeping out upstarts and likely being a heavier regulatory burden than small companies can bear. Large companies will do well because they can afford the extra overhead. Congress has created this barrier that will encourage and protect monopolies from competition, and later the same Congress will attack them for being monopolies looking to impose heavy handed regulation.

Far from being special protection for online operators, or an “internet industrial policy” as some have asserted, the notion of intermediary liability and its bounds stretch well back in jurisprudence history long before the advent of the internet. In fact, that history was the basis for Congressional thinking and drafting when section 230 was created. The same philosophies have been applied to everything from delivery companies to flea markets. Exposing online intermediaries to greater liability than intermediaries in the analog world reveals commentator’s and Congress’ bias away from rule of law in favor of rule of sophistry. The decision was nothing but mere politics. Internet companies failed to play the political game correctly and now Congress, and many policy commentators, are making sure they pay. The goal has always been about subjecting web platforms to greater liability, and truthfully, these days it is great politics. The swamp will have its revenge.

Ignorance in this decision abounds. One supporter of the proposed law is Mary Mazzio, director of a documentary film about online sex trafficking, who said that those who opposed SESTA are “clinging to a 1996 law” while dealing with a “21st century problem.” That is much like those who value speech free of government interference, free market and liberty in general clinging to that old 1789 law, the U.S. Constitution.

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