By Daphne Keller on August 11, 2017 at 11:32 am
Alarm bells are sounding around the Internet about proposed changes to one of the US’s core Intermediary Liability laws, Communications Decency Act Section 230 (CDA 230). CDA 230 broadly immunizes Internet platforms against legal claims based on speech posted by their users. It has been credited as a key protection for both online expression and Internet innovation in the US. CDA 230 immunities have limits, though. Platforms are not protected from intellectual property claims (mostly handled under the DMCA) or federal criminal claims.
The new bill is called the Stop Enabling Sex Traffickers Act, or SESTA. Its goal is an important one: to protect victims of sex trafficking, by ensuring that CDA 230 does not allow complicit Internet platforms to operate with impunity. It targets an infamous site, Backpage.com, which is said to knowingly support trafficking by hosting ads for sexual services
This is the second bill targeting Backpage in two years. The previous one – the SAVE Act – took a surgical approach, revising criminal trafficking law to apply to online advertisers. Since CDA 230 doesn’t immunize platforms for federal crimes anyway, this left the existing immunities intact.
If the SAVE Act used a scalpel, SESTA uses a shotgun. For platforms, it broadens existing federal criminal exposure and creates new claims under state criminal, state civil, and federal civil laws. Numerous critics have pointed out SESTA’s dangerous overbreadth, and particularly to the threat it poses to lawful online speech.
This post walks through the legal changes SESTA makes. The bill is extremely hard to parse. I hope this summary helps make sense of it, so we can move on to talking about its consequences.
1. SESTA greatly expands the actions and actors who may face prison and fines under federal criminal trafficking law. The new criminal statutory language, in 18 USC 1591, isn’t long – it redefines a single term, “participation in a venture.” But the result is a cascading series of changes in in the law, both within and outside of Section 1591. You can read the relevant provisions in full at the bottom of this post. I think realistically the big criminal law changes for ordinary platforms are:
a. CURRENT 1591: It’s a crime to knowingly benefit from participating in a venture that engages in advertising with knowledge of the trafficking.
b. SESTA 1591: It’s a crime to knowingly benefit from knowing conduct that by any means assists, supports, or facilitates an action that recruits, entices, harbors, transports, provides, obtains, maintains, patronizes, or solicits by any means a person, with reckless disregard of the trafficking. Since a defendant can be jailed merely for “facilitating” someone else’s acts of recruiting, transporting, etc., this is a huge expansion. (Weirdly, a defendant accused only of “advertising” still gets the benefit of a “knowledge” standard, rather than “reckless disregard.” But that won’t help if advertisers and anyone else can be jailed for vaguely defined acts like “facilitating.”)
For both the current and SESTA versions of 1591, other sections of the criminal code punish things like attempts or conspiracies (1594) and obstruction of enforcement (1590, 1591). It’s also criminal to recruit people for labor violating the provisions. (So… do I violate this if I hire an engineer to build a platform later alleged to violate SESTA?) (1590)
2. SESTA lets state Attorneys General prosecute platforms in any “action targeting conduct that violates a Federal criminal law” against sex trafficking. At the narrowest, this could mean that AGs must prove the federal criminal claim, and then can pursue only claims targeting the exact same conduct. At its broadest, it could mean AGs need only allege that the conduct violates federal law, and then can bring other related claims.
3. SESTA lets civil claimants sue platforms in two ways:
a. Plaintiffs can bring state law claims in any “action targeting conduct that violates a Federal criminal law” against sex trafficking. This is the same language used for AG prosecutions, and has the same ambiguities. For civil claims, there’s the additional question of what burden of proof plaintiffs must meet, if they are required to prove a federal criminal claim as a predicate for pursuing related state civil claims.
b. Plaintiffs can bring a federal civil trafficking claim under 18 USC 1595. This statute lets victims recover damages from defendants who knowingly benefit from participation in a venture when they knew or should have known it violated the criminal statute. Because SESTA expands the acts criminalized under 1591, it also expands civil liability under 1595. Civil 1595 claims also only require plaintiffs to prove a lower mental state standard – “knew or should have known” – than criminal 1591 claims.
4. SESTA purports to make these new claims retroactive, applying to acts that were legal prior to SESTA’s enactment.
SESTA opens doors to an unforeseeable array of claims, against an unforeseeable array of defendants. Big platforms may have the resources to fight these claims, small ones likely will not. But regardless of size, the cost of litigation and threat of liability provide platforms powerful reasons to err on the side of cutting off ordinary users from legal online speech and participation. Fighting sex trafficking is an important and laudable goal. But doing it through such sweeping and ill-considered changes to Internet speech and innovation law is a mistake.
SESTA CHANGES TO FEDERAL CRIMINAL LAW UNDER 1591(a)(2)
Indented sections providing relevant language from SESTA or other sections of 1591.
1591(a)(2) covers “[w]hoever knowingly… benefits, financially or by receiving anything of value, from participation in a venture…”
SESTA defines “participation in a venture” to include “knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates the violation of subsection (a)(1).”
1591(a)(1) covers anyone who “recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person[.]”
1591(a)(2) continues: “… knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act[.]”
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