SESTA and the Teachings of Intermediary Liability

Author(s): 
Publication Type: 
White Paper / Report
Publication Date: 
November 2, 2017

SESTA, the Stop Enabling Sex Traffickers Act, would overhaul US intermediary liability law and potentially expose hundreds of thousands of US platforms to new civil and criminal claims. Its exact legal consequences are uncertain, because the bill is so badly drafted that no one can agree on its meaning. But SESTA’s confusing language and poor policy choices, combined with platforms’ natural incentive to avoid legal risk, make its likely practical consequences all too clear. It will give platforms reason to err on the side of removing Internet users’ speech in response to any controversy – and in response to false or mistaken allegations, which are often levied against online speech. It will also make platforms that want to weed out bad user generated content think twice, since such efforts could increase their overall legal exposure.

SESTA would fall short on both of intermediary liability law’s core goals: getting illegal content down from the Internet, and keeping legal speech up. It may not survive the inevitable First Amendment challenge if it becomes law. That’s a shame. Preventing online sex trafficking is an important goal, and one that any reasonable participant in the SESTA discussion shares. There is no perfect law for doing that, but there are laws that could do better than SESTA -- and with far lass collateral damage to innocent Internet users. Twenty years of intermediary liability lawmaking, in the US and around the world, has provided valuable lessons that could guide Congress in creating a more viable law.

This Stanford Center for Internet and Society White Paper describes SESTA’s risks, the provisions that could make it better, and important lessons from existing laws that can guide lawmakers.