The R Street Institute and TechFreedom are leading a bipartisan coalition of think tanks and civil-society organizations deeply concerned with the recently introduced Stop Enabling Sex Traffickers Act (S. 1693), ostensibly targeted at Backpage.com. Congress absolutely should work to reduce sex trafficking, but this overly-broad proposal could have the opposite effect, discouraging cooperation between tech companies and law enforcement.
The bill works by weakening intermediary liability protections for online platforms under Section 230 of the Communications Decency Act of 1996. These protections have been crucial to developing America’s unique and innovative Internet ecosystem. Additionally, the bill expands the scope of federal criminal law by creating an overly broad definition of “participation in a venture” under 18 U.S.C. § 1591.
In a letter to Senate leadership, the coalition members (including R Street, TechFreedom, FreedomWorks, Heritage Action, New America’s Open Technology Institute, Access Now, Campaign for Liberty, Niskanen Center, Free the People, the International Center for Law and Economics and Demand Progress) identify five primary concerns with the legislation:
- The bill’s criminal provisions are superfluous— Section 230 does not shield online platforms from prosecution under federal criminal law, which already criminally punish human trafficking as well as inducement thereof and conspiracies therein, including through advertising. Congress barred state prosecutions for good reason: to make the U.S. Justice Department responsible for policing the uniquely interstate medium that is the Internet. Under-enforcement (or slow enforcement) by DOJ may be a legitimate problem, but it is not addressed by this bill.
- Creating new liability for online platforms will lead to more lawsuits, but won’t curtail trafficking— Section 230 already allows civil suits against platforms that create or develop content, even “in part.” Such suits are already underway in the states. These will draw upon new evidence, especially from DOJ’s criminal prosecution of Backpage’s founders. Legislating before these suits play out would be premature.
- This bill may be counterproductive to efforts to combat sex trafficking— Current protections encourage online platform providers to act as Good Samaritans to identify perpetrators and protect victims. Perversely, this bill would discourage companies from policing their sites and ultimately create a more permissive online environment for sex trafficking.
- The bill’s overly broad language is deeply concerning— The bill would create tremendous uncertainty in our innovative online ecosystem. Particularly unclear and problematic is the addition, to 18 U.S.C. § 1591, of the term “knowing conduct.” This ambiguity would chill online expression by placing a huge burden on online platforms seeking to protect themselves from liability.
- This bill should not be allowed to proceed outside of regular order— Considering the magnitude and complexity of this issue, it would be inappropriate to circumvent the normal committee process and solicitation of stakeholder input, such as by attaching it to “must-pass” legislation like the defense authorization bill. Reassessing Section 230 may be appropriate, but upending the balance under current law without a careful consideration could have devastating consequences for the Internet, as well as for the efforts of private companies to combat trafficking.
In addition to our broad coalition, the bill has also been publicly opposed by tech industry groups, as well as Internet-based startups—all within two days of its introduction. We urge the Senate to stand up for Internet freedom by vigorously opposing S.1693 in its current form as well any attempts to advance this problematic bill outside normal committee process. Click here for the full text of the letter.