The US Senate today passed a bill that weakens legal protections given to websites that host third-party content, saying the measure will help stop promotion of prostitution and sex trafficking on the Internet. But the legislation won’t actually help victims of sex trafficking, and will erode online free speech, critics say.
The Senate passed the Stop Enabling Sex Traffickers Act (SESTA) in a 97-2 vote. Only Sens. Ron Wyden (D-Oregon) and Rand Paul (R-Kentucky) voted against the bill, which is also known as the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). It already passed the House of Representatives, and is expected to be signed by President Donald Trump.
The bill changes Section 230 of the 1996 Communications Decency Act, which provides website operators with broad immunity for hosting third-party content. The bill declares that Section 230 “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”
As such, the bill says that website operators who “promote or facilitate the prostitution of another person” will no longer have the legal protections of Section 230. Violators could face fines or prison sentences of up to 25 years. The bill was spurred largely by Backpage.com, even though the site already shut down its adult advertisement section because of government pressure.
Online free speech at risk
“SESTA/FOSTA undermines Section 230, the most important law protecting free speech online,” Electronic Frontier Foundation (EFF) activist Elliot Harmon wrote today in a post titled, “How Congress Censored the Internet.”
The bill “open[s] platforms to new criminal and civil liability at the state and federal levels for their users’ sex trafficking activities,” Harmon wrote.
The bill is worded broadly enough “that it could even be used against platform owners that don’t know that their sites are being used for trafficking,” he wrote.
It’s easy to see the impact that this ramp-up in liability will have on online speech: facing the risk of ruinous litigation, online platforms will have little choice but to become much more restrictive in what sorts of discussion—and what sorts of users—they allow, censoring innocent people in the process.
What forms that erasure takes will vary from platform to platform. For some, it will mean increasingly restrictive terms of service—banning sexual content, for example, or advertisements for legal escort services. For others, it will mean over-reliance on automated filters to delete borderline posts. No matter what methods platforms use to mitigate their risk, one thing is certain: when platforms choose to err on the side of censorship, marginalized voices are censored disproportionately. The Internet will become a less inclusive place, something that hurts all of us.
Opposition from sex workers
Some sex workers and advocates for sex workers opposed the legislation, saying that websites can help sex workers screen clients and avoid dangerous situations.
“The problem is that these bills target websites that are widely and inaccurately believed to be hubs of trafficking activity when it is precisely those websites that enable people in the sex trades to do their work safely and independently, at the same time as they make it easier for authorities to find and investigate possible trafficking cases,” Alana Massey wrote for Allure. (Massey sometimes uses her platform as a writer “to discuss my sex work history and advocate for people who are currently in the sex trades,” she noted.)
Sen. John Thune (R-S.D.) defended the bill, saying that “Today’s vote pushes back against the growth of illegal sex trafficking on the Internet.” Sen. Bill Nelson (D-Fla.) said, “We simply cannot sit idly by any longer while websites aid and abet child sex traffickers.”
Wyden urged senators to vote against the bill, but his call went unheeded. “In the absence of Section 230, the Internet as we know it would shrivel,” he said on Senate floor before the vote, according to The Hill. “Only the platforms run by those with deep pockets, and an even deeper bench of lawyers, would be able to make it.”