It’s hard to argue against a bill as unassailably titled as the Stop Enabling Sex Trafficking Act, introduced in the Senate last week as S.1693. The measure already enjoys broad bipartisan support and boasts 27 cosponsors.
However, in its effort to punish backdoor online sex traffickers, this legislation appears likely to have unintended damaging consequences wholly unrelated to the issue. Since its introduction, a large array of voices—including civil liberties groups, think tanks, startups and tech industry groups—have come out, despite obvious reputational risks, to point out ways the bill would be counterproductive and damaging to internet freedom.
The proposed legislation includes overly broad language that would modify Section 230 of the Communications Decency Act, which provides online platforms a limited liability shield for user-generated content. If revised, online platforms would be liable for the behavior of their users. Critics of the legislation agree that without these protections, America’s unique and innovative internet ecosystem will collapse.
As R Street wrote in a bipartisan coalition letter with other think tanks and civil-society organizations, this well-intentioned bill threatens to weaken the pillars of internet freedom. Human rights and civil liberties organizations have voiced concerns that the bill would lead to increased censorship across the web. Moreover, it would hinder existing voluntary incentives to stop trafficking and discourage platforms’ proactive efforts to address evidence of trafficking, for fear of being implicated and prosecuted.
Currently, online communications pass through multiple intermediaries—including web-hosting platforms, email providers, messaging services, search engines, online advertisers and more—all of whom depend on protection from misdirected legal threats. Without the protection of Section 230, each intermediary could face potential lawsuits based on the millions of videos, posts and pictures uploaded to their platforms every day. Many stakeholders have pointed out that it’s unlikely the bill will do anything to combat trafficking, but it will certainly invite trial lawyers to bring a deluge of frivolous lawsuits that target law-abiding platforms.
The Electronic Frontier Foundation cited Section 230 as “one of the most important laws protecting free expression online.” To clarify, Section 230 does not provide immunity and has never prevented intermediaries from facing federal criminal charges. The U.S. Justice Department has every right to pursue anyone who violates trafficking statutes on internet platforms without making any changes to existing law.
“If online intermediaries were held responsible for the actions of each and every user, the potential liability would be so massive that no reasonable person would start or invest in such a business,” the Consumer Technology Association stated.
A multitude of tech coalitions have also highlighted how the overly broad legislation would harm legitimate U.S. tech companies. Without the protection provided by Section 230, all internet platforms will be responsible for engaging in self-censorship and resource-intensive review to inspect all user-generated content. While some tech giants might be able to shoulder the cost, the burden undoubtedly would stifle development of smaller websites and startups. Law-abiding citizens would be left dealing with the repercussions, while bad agents could easily escape by moving abroad or changing their URL address.
Section 230 promotes positive legal behavior. The tech industry has been cooperative in the fight against trafficking, working closely with law enforcement to identify potential illegal activities. The Copia Institute and Engine Advocacy groups highlighted in their letter how the tech industry has created their own tools, combining cutting-edge technology and big data to eradicate trafficking in the online sphere. This bill could have a chilling effect on the industry’s relationship with law enforcement. Trade associations spanning the breadth of the U.S. media and technology industries have described how the measure would be counterproductive to those companies’ efforts to combat sex trafficking. Ultimately, it would create incentives not to filter proactively for evidence that might implicate companies in criminal lawsuits.
New legislation is not necessary to hold actors accountable for their participation in illegal activity. The internet is the product of user-generated content and the ramifications of a bill like this would be devastating.
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