Congress Is About To Eviscerate Its Greatest Online Free Speech Achievement

September 11, 2017
Guest Post

by Eric Goldman, Professor of Law, Santa Clara University School of Law

 

In 1996, Congress became concerned that excessive liability would threaten the free flow of information over the Internet. To protect the Internet from this risk, Congress passed 47 USC § 230 (Section 230), which eliminates (with limited exceptions) the liability of online services for publishing third party content.
 
By any measure, Section 230 has been a remarkable success. Think about the Internet services you use daily, such as Google, Facebook, YouTube, Wikipedia, Twitter, eBay, Snapchat, LinkedIn, and Yelp. All of them publish third party content, and all of them have flourished because of Section 230’s immunity. Section 230 also promotes competitive markets by reducing entry costs. New entrants can challenge the marketplace leaders without having to match the incumbents’ editorial investments or incurring fatal liability risks.
 
Section 230 is a globally unique policy; no other country has passed a law similar to it. As a result, the United States has a global competitive advantage for online services that republish third party content. This has helped create trillions of dollars of social wealth in the United States.
 
Section 230 has remained essentially unchanged since its passage, but that could change imminently—in significant and troubling ways.
 
Backpage, an online classified service that publishes prostitution ads, has defeated multiple legal challenges by relying on Section 230. Angered by Backpage’s continued existence, and fueled by anti-trafficking advocates who want Backpage gone, Congress is considering two bills – Stop Enabling Sex Traffickers Act of 2017 (SESTA), S. 1693, and Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865 – to amend Section 230.
For simplicity, I’ll focus on SESTA’s provisions. SESTA would make three major substantive changes to Section 230’s immunity. It would:
 
  1. Exclude state criminal prosecutions related to sex trafficking from Section 230’s immunity. State attorneys general and other local prosecutors could prosecute online services for trafficking-related crimes without any Section 230 limits.
  2. Exclude federal and state civil causes of action related to sex trafficking from Section 230’s immunity. Sex trafficking victims (and others) could obtain money judgments and injunctions against online services.
  3. Expand the scope of the existing federal crime (and associated civil claims) of sex trafficking. Section 230 expressly does not restrict federal criminal prosecutions, so the U.S. Department of Justice (DOJ) could pursue a wider range of prosecutions against online services.
 
I’m glad that Congress is combating sex trafficking, but SESTA is not the right policy solution for at least six reasons:
 
  1. SESTA may not help sex trafficking victims. It might hurt them. Online prostitution ads are evidence of crimes being committed, providing a roadmap for law enforcement to find and prosecute criminals. That has occurred countless times. The ads also can help rescue sex trafficking victims. By investigating the ads, law enforcement and victim advocates have found and rescued many victims. (For a recent example of a rescue, see People v. Jones, 2017 WL 3633962 (Cal. Ct. App. Aug. 24, 2017), a case involving Craigslist ads). SESTA might reduce the visibility of online prostitution ads; but sex trafficking will still occur, and so will the marketing of sex with trafficked victims via less visible means (such as “walking the streets”). SESTA will make it harder to find—and rescue—those victims.
  2. Congress is fighting sex trafficking on many fronts. Congress is currently considering more than 30 bills referencing “sex trafficking;” and Congress’ prior two sessions each included over 50 bills referencing “sex trafficking.” So SESTA is far from Congress’ only anti-sex trafficking policy option; and even if Congress doesn’t pursue SESTA, Congress can and will redress sex trafficking other ways.
  3. Congress already has statutorily targeted Backpage. The 2015 SAVE Act created a new federal crime for publishing online ads that promote trafficking victims. A federal grand jury in Phoenix is currently investigating Backpage, and the SAVE Act may be part of that investigation (grand jury proceedings are secret). So the DOJ already may be using the new crime to achieve Congress’ goal without SESTA.
  4. Other crimes may already apply to Backpage. Though Backpage has had significant success in court, recently a California state court ruled that Backpage executives must defend charges of violating state money laundering laws. Also, in the past couple of years, the DOJ successfully prosecuted and shut down two websites publishing online prostitution ads (Rentboy and MyRedbook). The DOJ should be able to deploy similar legal theories against Backpage.
  5. No one knows how SESTA would change the law. By reducing Section 230’s immunity, SESTA would allow a range of laws to apply to Internet services for the first time. Which laws? Apparently, no one knows; I’m unaware of any attempt to inventory those laws. So what criminal prosecutions and civil claims will be brought post-SESTA, by whom, and against which services? Again, no one knows.
  6. SESTA would damage the Internet, perhaps radically. We can only speculate how SESTA might affect the Internet services we know and love. For example, Airbnb has had numerous issues with short-term rentals being used for prostitution, likely including sex trafficking victims; and it’s well-known that prostitution is advertised on Facebook. After SESTA, will Airbnb and Facebook look radically different as they try to avoid substantial criminal and civil liability exposure?
 
Even if we could figure out how SESTA changes the law today, we can’t contemplate how future state laws will take advantage of the new regulatory zones enabled by SESTA. Imagine a new state law requires services to prescreen all third party content to find and block sex trafficking ads. How would Twitter work with prescreened tweets?
 
Finally, Section 230 does not distinguish between services that passively display third party content or actively manage that content: in both cases, publishers aren’t liable for third party content. This policy allows online services to try to suppress illegal or socially harmful content without fearing legal exposure for whatever they miss. In response to SESTA’s curtailed Section 230 immunity, many services probably will reduce their current suppression efforts to avoid having scienter that would create liability. If that happens, SESTA’s attempt to suppress one type of illegal content will counter-productively cause the proliferation of illegal and socially harmful content—including, ironically, the proliferation of online prostitution ads if services dial back existing suppression efforts.
 
The First Amendment is the foundation of free speech in our society. However, legislators can supplement the First Amendment’s protections. Section 230 is a premier example of speech-enhancing legislation that enriches the free speech rights of speakers and their publishers. Undoubtedly, Section 230 has done more to advance free speech than anything else Congress has done in the past quarter-century; and Section 230 may be Congress’ greatest pro-free-speech achievement ever. It’s hard to believe that Congress would ruin its free speech masterpiece, but that’s exactly what SESTA would do.