In advance of a markup of the Stop Enabling Sex Traffickers Act (S. 1693) (“SESTA”), scheduled for November 8 in the Senate Committee on Commerce, Science and Transportation, Senator John Thune (R-SD) has floated a manger’s amendment [.pdf] that is intended to replace the current text of SESTA. Unfortunately, Sen. Thune’s bill is not an improvement over SESTA.
Amendments to Section 230
Sen. Thune’s bill, like the current SESTA language, would expand Internet intermediary liability for user-generated content by weakening Section 230 immunity (47 U.S.C. § 230). Specifically, both bills would expose online platforms to state criminal prosecutions, and federal and state civil actions.
As we’ve explained, these changes are not necessary because Section 230 is not broken. Section 230 strikes a reasonable policy balance that allows the most egregious online platforms to bear responsibility for illegal third-party content, while generally preserving platform immunity so that free speech and innovation can thrive online.
Amendments to Federal Criminal Law
Sen. Thune’s bill, like the current SESTA language, would amend the federal criminal sex trafficking statute (18 U.S.C. § 1591) to sweep up online platforms that “assist, support, or facilitate” sex trafficking (given that Section 230 doesn’t apply to federal criminal law).
As we explained, the words “assist, support, or facilitate” are extremely vague and broad. Courts have interpreted “facilitate” in the criminal context simply to mean “to make easier or less difficult.” A huge swath of innocuous intermediary products and services would fall within these newly prohibited activities, given that online platforms by their very nature make communicating and publishing “easier or less difficult.”
Additionally, both Sen. Thune’s bill and the current SESTA language oddly place this new liability within a new definition of “participation in a venture.” Importantly, this would do nothing to change the existing state-of-mind standard in the last paragraph of Section 1591(a), which provides that sex trafficking liability attaches when an individual or entity acts in reckless disregard of the fact that sex trafficking is happening. This means that online platforms would be criminally liable when they do not actually know that sex trafficking is going on—much less intend to assist in sex trafficking.
Retroactivity
Sen. Thune’s bill, like the current SESTA language, has a retroactivity provision, meaning that liability would arise even when the relevant conduct happened before the enactment of the Act. This provision has significant due process implications.
EFF is deeply disappointed to see some large tech industry companies lining up to endorse this new version of SESTA. We are glad to see Engine and our other Stop SESTA allies continue to oppose it. Like the original bill, this version is deeply flawed and would do nothing to fight sex trafficking.
