Critics, Supporters at Odds Over Section 230 Change Aimed at Curbing Sex Trafficking

Catholic University law professor Mary Graw Leary said the Stop Enabling Sex Traffickers Act or SESTA (S-1693) is a "needed" clarification to 230, which sought to create limited -- not absolute -- liability for online platforms. She said the bill restores that limited protection, and companies that are good Samaritans or have no knowledge of what's going on in their websites won't be held liable. TechFreedom President Berin Szoka said all federal criminal laws are excluded from 230, which doesn't always apply or provide broad immunity. He fears lawmakers are rushing through legislation without understanding the implications.

Arthur Rizer, director-national security and justice policy at the R Street Institute, told us he thinks SESTA is going to pass. "There has to be some boiling down of the language because the mens rea that is in the Senate [bill] right now is just all over the place," he said, citing a difference of opinion with Leary about mens rea in the bill. "If two criminal law professors cannot agree on what the mens rea is, that's a problem," said Rizer, a former DOJ attorney, law professor and police officer with experience dealing with human trafficking. He said the 2014 Stop Advertising Victims of Exploitation Act, or Save Act, hasn't been given enough time to work and two years isn't enough to know. Bill critics are unsure whether DOJ is going after Backpage.com, which has been cited as an egregious operator facilitating online sex trafficking while trying to hide behind 230 (see 1701100001).

U.S. Naval Academy assistant professor Jeff Kosseff, who has a forthcoming book on 230, is concerned about state involvement. He told us later it's similar to how state may try to regulate data breaches, autonomous vehicles and drones. The business community has advocated uniform legislation in such matters rather than deal with multiple jurisdictions. Rizer said state attorneys general may sue tech companies as a way to generate money for the states and use it as a "political football" for higher office.

Tech interests say they help law enforcement fight online sex trafficking, and something needs to be done, but they're largely lock-step against any 230 changes (see 1708110022 and 1708030014). This week, Oracle backed the bill in a letter to Sens. Rob Portman, R-Ohio, the bill's sponsor, and Richard Blumenthal, D-Conn., who is among 27 co-sponsors. Senior Vice President Kenneth Glueck wrote the bill won't "usher the end of the Internet" and "will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking."

"It is not an accident that the only tech company that's come out in support of the bill is a company that has nothing at all to do with Section 230 and whose businesses ... don't post user content," Szoka told us. He said the assertion that some in tech community are opposed because of Oracle's support is "misleading."

Taina Bien-Aime, executive director-Coalition Against Trafficking in Women, said her organization has been "desperately" urging New York state law enforcement to go after a "sugar daddy" website where it's clear its publisher and owner is facilitating sex for money. She said the state said it can't do anything because of Section 230. She said online sex trafficking is a multibillion-dollar industry and profit shouldn't come at the expense of vulnerable women and girls, who represent 96 percent of those trafficked.