NCMEC'S Souras Says SESTA 'Sufficiently Narrow' But IA, Tech Professor Have Concerns
The Stop Enabling Sex Traffickers Act (SESTA), which seeks to clarify Section 230 of the Communications Decency Act (see 1709070033), is "sufficiently narrow" to help child sex trafficking victims get justice and help civil attorneys and state attorneys general hold entities that participated in the trafficking responsible, said prepared testimony provided by National Center for Missing & Exploited Children General Counsel Yiota Souras. She will speak at a Senate Commerce Committee hearing Tuesday on S-1693 alongside Santa Clara University School of Law professor Eric Goldman and Internet Association General Counsel Abigail Slater, both with concerns, and California AG Xavier Becerra.
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Goldman plans to testify that Congress should be commended for combating trafficking but the legislation isn't the right mechanism. "SESTA will counterproductively lead to more socially harmful content and more online sex trafficking promotion" and help spur more bad actors in the space, he says. Section 230, he contends, allows online services to adopt various moderation practices and "suppress socially harmful content ... without fearing liability for whatever they miss." With SESTA, online companies will "conclude" they won't be able to do that anymore, he says.
Souras says fighting trafficking is a "multi-faceted problem" and SESTA won't put an end to it. "SESTA’s narrow goals are intended to make certain that the CDA’s ongoing protections enjoyed by a robust internet industry will not extend to next generation platforms" like Backpage.com, which a congressional investigation found was liable for facilitating such trafficking (see 1701100001), she will say. SESTA focuses on criminal conduct such as the sale of a child for sex, "which does not implicate the First Amendment or the Good Samaritan exception under Section 230" and immunity won't be extended to actual criminal conduct, she says. She will say the legislation will maintain protections for online publishers who publish third-party content or "good faith removal of objectionable online material."
Slater will say in her prepared testimony that SESTA is "well-intentioned" but will introduce "new legal risk" for "innocent businesses by expanding the notion of contributory liability," meaning the bill could hold liable any company that could benefit from its role in facilitating trafficking even if it doesn't know about it or can't stop it. A "multipronged" approach will be needed to fight the problem including DOJ prioritizing prosecutions through current laws, she will say. She will say IA will also welcome clarification under 18 U.S.C. §1591 "to include a knowledge standard for 'assist[ing], facilitat[ing], or support[ing]' trafficking" so there is federal accountability for bad actors.
Meanwhile, Hewlett Packard Enterprise has come out in support of SESTA, in a Monday letter to bill sponsor Sen. Rob Portman, R-Ohio, who released it publicly, and co-sponsor Sen. Richard Blumenthal, D-Conn. "The technology sector has a responsibility to help policymakers and law enforcement combat illicit and criminal activity on the internet, especially sex trafficking," wrote HP General Counsel John Schultz. HP Enterprise is the fourth company to support the bill (see 1709140003). The tech community strongly pushed back on the legislation, saying it's too broad and holds online publishers liable for such content, affecting innovation and free speech (see 1708010011 and 1708110022).