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The Internet as we know it is in jeopardy, thanks to Congress. Legislators on both sides of the aisle are threatening to rewire the Internet by imposing innovation-stifling regulations on online providers under the guise of a noble cause: curbing sex trafficking.
The Stop Enabling Sex Traffickers Act of 2017 (SESTA) proposes holding internet service providers liable for third-party speech on their sites that “facilitates” sex trafficking. Is SESTA well-intentioned? Absolutely. But should it be law? Absolutely not. That’s because SESTA would fundamentally alter the rules of the internet in ways that will shut down free speech and hamper the ability of providers to continue technological innovation.
You can write almost whatever you want, and post it almost wherever you want, on the Internet. This is one of the most essential aspects of free speech in our technological age. The websites we post on can regulate our posts insofar as they choose to, but federal rules forcing websites to do so are virtually nonexistent.
We are held legally accountable for our own speech online. This is entirely thanks to protections in Section 230 of the Communications Decency Act (CDA), which Congress’ new bill is trying to curtail.
In 1996, Congress passed Section 230 as a caveat to the CDA’s regulation of Internet speech. Much of the CDA was struck down in Reno v. ACLU as a blatant violation of First Amendment rights, but Section 230 still stands strong. It offers protection for “provider[s] of...interactive computer service[s]” from being held liable as the “publisher or speaker” of any third-party speech.
Essentially, this means that Facebook, Twitter, etc. cannot be sued over the speech that one of their users posts on their websites. To put it even more simply, the person who said it is the only one who can get in trouble for it.
Common sense, no? Well, everyone thought so, for over twenty years, until now.
If Congress passes SESTA, we would see huge collateral damage in the form of destroying the core pillar of Internet freedom. This is not to mention the bill’s ineffectiveness, even if we were willing to crush free speech for it.
SESTA seeks to limit Section 230 protections for providers, exposing them to legal penalties if there is third-party speech on their sites that “facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” Such a limitation has innumerable problems, but every problem stems from the same cause: federal regulation legally requiring a business to do something.
Sex trafficking is a national problem that even trained law enforcement has a very difficult time identifying. There is no way that an administrative employee of an online provider can reasonably be expected to identify true sex trafficking remotely accurately. But, even if identifying such speech was easy, Facebook alone, for example, has over 2 billion active users. Businesses should not be expected to monitor the speech of that many individuals.
Additionally, the vagueness of “facilitation” opens a door to abuse of SESTA. It unfairly exposes providers to litigation for any questionable speech by any of their users, that might falsely mark the website as an “enabler” of sex trafficking.
To hold online providers liable like this is a massive overreach of federal regulation into the private sector, as well as a government-imposed limitation on Internet free speech. The federal government already has severe federal criminal punishments in place for individuals facilitating human trafficking. Individuals are now, and should continue to be, the only ones held responsible for their own speech and actions.
Our society depends on Section 230 to innovate online, and any erosion of these protections sets a dangerous precedent. Curbing sex trafficking is important, but destroying Internet freedom is not the way.