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The Stop Enabling Sex Traffickers Act (SESTA) will be marked up in committee tomorrow, and if passed, the bill would badly damage Internet innovation. To avoid substantial unintended consequences, Senators should consider adding language to SESTA in order to protect innocent websites.
SESTA is intended to facilitate prosecution of websites such as backpages.com that are guilty of directly supporting trafficking crimes. Tackling this criminal activity is both necessary and admirable, but SESTA invites countless frivolous lawsuits with its vague terminology.
The heart of this issue is usage of a “knowledge standard” for determining when a website’s administration truly knows that it’s supporting sex trafficking crimes. The bill’s current language threatens popular user-based content sites such as Youtube, Twitter, Facebook, and countless other smaller sites that provide platforms for users to share content that the websites have no role in creating. Current amendments to SESTA define “participation in a venture [of federal sex-trafficking crimes]” as knowingly assisting, supporting, or facilitating these acts.
This definition is better than the original SESTA provision, but still fails to adequately address the question of what constitutes knowledge. Knowledge could mean anything when considering how user-based content websites police themselves.
Rather than pre-approving the billions of content bits posted online to these sites, user-based content websites allow users to flag material that violates community standards and laws. Without a narrowly tailored definition of knowledge, it’s possible that courts could determine criminal liability for websites that received flags regarding user-based content for sex trafficking offenses. This flag could indicate that a website knew about the content, making it criminally liable, even though it didn’t participate in the crime, and had no intentions of facilitating it.
The consequences of leaving the definition of knowledge up to interpretation could be grave. Websites may abandon community standards and user-flagging policies, seeing that using them could establish liability in court. Innovators might avoid the user-based content model wherever possible to avoid liability. The Internet will become less efficient and less friendly under a vague knowledge standard.
But SESTA can be fixed. Law Professor Eric Goldman, an expert on laws defining criminal liability for websites, proposes a fix. Goldman believes that adding the following language to SESTA would avoid the problems caused by a vague knowledge standard:
“The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove, material it considers objectionable shall not be considered in determining its liability for any material that it has not removed or restricted access to.”
With this provision added, websites would not be disincentivized to uphold community standards and user-based monitoring systems. Senators would be able to address their concerns about sex trafficking crimes without damaging our favorite law-abiding websites in the process.