Momentum Building for Senate Bill to Stop Online Sex Trafficking
S-1693 to help website providers police online sex-trafficking appears headed for approval in a Wednesday Senate Commerce Committee markup. Tech experts say the bill still creates legal uncertainties and won’t do much to stop bad actors. The Stop Enabling Sex Traffickers Act (SESTA) bill got a boost Friday (see 1711030067) with approval of a manager’s amendment tightening definitions of what constitutes a “knowing” violation of the law, and clarifying that states could bring civil suits in federal court for violations of federal law. The amendment prompted the Internet Association, which previously had concerns (see 1709180044), to back the bill.
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“IA’s move was completely understandable,” blogged Santa Clara University School of Law professor Eric Goldman. Given the manager’s amendment and that S-1693 has 36 co-sponsors, “flipping on the bill made sense,” Goldman said, saying some in the tech community viewed the amendment as removing incentive for platforms to assist law enforcement in the removal of sex trafficking activities on their websites. “There’s a serious question of whether this bill will actually help sex trafficking victims,” he told us. It likely will put significant pressure on online classified ads and dating sites to come up with procedures for identifying and rooting out sex traffickers, he said.
“Sex-trafficking promotions aren’t easily filtered” because of the practice of using continuously changing code words to mask illegal activities, Goldman said. SESTA would expand the scope of the federal sex trafficking crime, exposing online services to more risk of prosecution. The manager’s amendment clarifies that civil and state lawsuits and state criminal prosecutions must be linked to evidence that alleged offenders violated federal anti-sex trafficking laws. Goldman said this would help create a federal standard, avoiding proliferation of numerous, differing state laws.
The manager’s amendment doesn’t fix SESTA’s problems because the knowledge standard “remains vague and overbroad, leaving platforms criminally liable even when they don’t actually know of criminal activity, TechFreedom President Berin Szoka said. The amended bill would expose sites to criminal charges and civil claims based on conduct before enactment of the law, violating the Constitution, he said. TechFreedom and the tech startup group Engine proposed an alternative approach -- a notice and takedown system similar to what's used to detect and remove copyright and sexual exploitation images.
Advocates for further changes to SESTA are looking to Sen. Ron Wyden, D-Ore., an author of the Communications Decency Act that SESTA would update, for actions he might take to stop S-1693's progress. His office didn't comment. Wyden voiced concern in recent hearings that weakening CDA Section 230 would be a mistake because it has been an engine of growth for internet companies, and other federal laws can be used to prosecute sex traffickers. He was joined in dissent to SESTA by former Rep. Chris Cox, R-Calif., who worked with Wyden on creating CDA (see 1710030042).
A question is how the House would proceed if the Senate passes SESTA. HR-1865, with 169 co-sponsors, is a similar but broader bill introduced by Rep. Ann Wagner, R-Mo. Her office didn't comment.