Last Wednesday, the Senate passed the Stop Enabling Sex Trafficking Act (SESTA). While intended to help authorities combat online sex trafficking, the bill will actually make prosecuting sex traffickers more difficult, all while raising serious Constitutional and speech-related issues.
The bill allows authorities to prosecute websites for having knowledge of any content involved with sex trafficking posted by users to the site. However, both the House Judiciary Committee and the Department of Justice have stated this standard will actually make it more difficult to prosecute websites for aiding in sex trafficking. Because most content advertising trafficking does not explicitly say so, proving that website operators had actual knowledge that trafficking was occurring is nearly impossible.
Even worse, SESTA will discourage website from properly monitoring user-generated content for not only sex trafficking but illegal activity of all kinds. If website operators can be held liable simply for knowing that trafficking is occurring, they will simply cease monitoring altogether, allowing crime and abuse to grow unchecked. Alternatively, some may choose to aggressively censor anything that holds the slightest resemblance to sex trafficking, sweeping up countless harmless posts and severely limiting online speech in the process.
For many, the risk of litigation will be far too high, and they will have to curtail features and services over fears that they may potentially be used for sex trafficking. This has already started to happen; On Friday morning, Craigslist announced that it would be entirely removing its “Personals” section, directly citing the House’s passage of its version of the bill as the reason. This is likely to be only the first of many.
For smaller web companies in particular, the cost of compliance will be far too high. While Internet giants like Facebook and Google have large budgets that can easily absorb the cost of extensive surveillance, and weather any expensive legal battle, smaller startups will not survive.
In 1996, Congress passed a law that was intended to address this exact “moderator’s dilemma.” Section 230 of the Communications Decency Act allows companies to avoid most legal liability for hosting content posted by users. It’s been critical to the growth of the Internet; social media, email, video-hosting sites, and countless other services couldn’t exist without it. While the immunity is broad, it does not extend not federal crimes – like sex trafficking.
The passage of SESTA was spurred by a case involving Section 230. The website Backpage was accused of not only hosting content related to sex trafficking, but of actively helping traffickers craft posts to avoid detection by law enforcement. The courts ruled that Backpage cannot be prosecuted for this due to Section 230 immunity.
However, a report from the Senate Subcommittee on Investigations argues that, because Backpage actively assisted in the development of content, they should not receive immunity under Section 230. The court’s ruling is currently being challenged and likely to be overturned, but the process has apparently moved too slowly for members of Congress who have rushed to fix a law that most experts in the field agree does not need to be fixed.
Even if signed into law, SESTA is unlikely to last long. In its letter, the Department of Justice noted that the bill’s provision stating that the change applies to conduct that occurred both before and after it’s enacted violates the Constitution’s prohibition against punishing acts that were legal when performed and made illegal after the fact.
In light of this clear Constitutional violation, SESTA will almost certainly be struck down in court. However, these legal battles can often take years, and in the meantime, prosecutors will be forced to deal with the new obstacles this bill creates while trying to bring sex traffickers to justice.
Victims of trafficking deserve better than this.