Changes unveiled last week to the controversial Stop Enabling Sex Traffickers Act (SESTA) have won the support of the Internet Association, which includes tech giants like Facebook and Twitter. While these minor revisions may have eased the bill’s passage out of committee Wednesday, lawmakers haven’t yet come within hailing distance of addressing SESTA’s underlying problems.
Shaped by good intentions, SESTA would reduce today’s internet to something more like traditional newspapers or broadcasters, rather than a democratic environment in which everyone’s voice may be heard. It would entrench the internet’s dominant voices as trusted sources, essentially because they’re easier to sue in court.
{mosads}The strategy to achieve that goal is to amend Section 230 of the Communications Decency Act, a 1996 federal law that provides some legal immunity to internet service providers who carry your email, host your website or enable you to engage online with communities of people with whom you share interests. Under Section 230, internet services normally aren’t legally responsible for what other people use them to say. Post a defamatory statement or a bullying message or an obscene image on Facebook, and Facebook isn’t legally responsible — instead, the responsibility lies with you. Section 230 is a product of Congress’ 1996 finding:
The internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
In short, Congress believed the internet was central to modern Americans’ First Amendment freedoms. Lawmakers knew that internet sites and services were going to be places where Americans exercised those freedoms. Congress crafted Section 230 to ensure that internet services aren’t compelled — out of the fear of lawsuits or other threats of legal action — to censor what you say online.
With that said, Section 230 has never been a blank check for internet services. It doesn’t make an internet company immune from prosecution for federal crimes, for example, or for copyright infringement. Federal prosecutors could go after a social-media company right now if they believe the company has engaged in criminal conduct, even without SESTA. And if you’re an internet service that actively promotes sex trafficking—nominally the activity this bill would target—you may be found legally liable in a civil action and forced to pay damages as part of a judgment, or opt to settle (expensively) out of court.
Since the legislation isn’t necessary to prosecute or bring suit against internet companies that prove to be bad actors, one may ask what its real purpose is. The short answer is that SESTA would benefit trial lawyers and entrepreneurial state attorneys general by making it easier to sue rich platform companies like Google and Facebook.
Obviously, those big, successful companies can afford to defend themselves. But the startups of today or tomorrow would have a harder time making sure they stay in compliance not just with federal and international law but also, to some large extent, with the separate, varying tort laws and criminal laws of all 50 states. If you’re a new company that wants to build their own internet success stories or create their own social-media communities to compete against the giants, the only way to ensure you aren’t sued out of business will be to take down any user’s content in the face of any legal threat.
In some ways, SESTA could be a boon for today’s most successful internet companies. If these tech giants seem to be near-monopolies now, think how much easier it will be for them if new competitors are strangled in the crib by lawsuits designed to raid startups for their venture capital. Perhaps that’s why the Internet Association — which opposed an earlier, slightly broader version of SESTA — has now given its grudging support: because the bill, whatever its faults, would hit non-members harder than its members.
Beyond the economics, there are bigger issues, like our First Amendment rights. The First Amendment wouldn’t mean much if internet companies (sometimes labeled with the unwieldy term “internet intermediaries”) had strong incentives to monitor and censor what we say. Remember that Congress in 1996 found the internet to host “a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” These are interests that belong to all of us as individuals. They are interests we’ve been able to pursue to a far greater degree than previous generations precisely because the internet (including the social-media platforms that thrive there) has made it easier for us to talk candidly and expressively to one another than ever before, about everything from politics to art to religion. That’s what the First Amendment is all about.
Some individuals, like some companies, will abuse their freedoms under laws like Section 230, just as they do their rights granted under the Constitution. But even if Section 230 needs to be amended or refined in some way, we need to preserve this balance in favor of freedom over intimidation. That’s a test that this latest vague and overly broad version of SESTA still fails to meet.
Passing SESTA would tie up our internet freedom of speech in state courts for years and decades to come. It will also entrench the biggest internet platforms right at the moment when many policymakers and pundits are expressing concern about their size, political influence, and market dominance. Congress should think again before altering Section 230’s balance, which makes it easier for internet platforms to give individuals the chance to speak and harder for lawsuits to silence them.
Mike Godwin is a senior fellow at the R Street Institute, a free-market think tank based in Washington, DC.