The federal Stop Enabling Sex Traffickers Act (SESTA) was intended to reduce sex trafficking via ads or listings that appear on some websites. We agree that the horrific crime of sex trafficking should be stopped, but SESTA is the wrong solution – written with little input from law enforcement and experts on internet law.
- does little to help prosecutors prove criminal intent of websites where sex-trafficking appears,
- makes it significantly easier for trial lawyers to sue online platforms for big payouts, and
- discourages online platforms from monitoring their sites for illegal content
SESTA’s removal of the “Good Samaritan” component raises the greatest concern.
Section 230 of the Communications Decency Act was created to encourage sites to monitor, by holding sites harmless if they fail to takedown all illegal content. But SESTA upends “Good Samaritan” protections and makes platforms that monitor vulnerable to lawsuits for any listings they failed to detect. Under SESTA it would be safer for platforms to monitor nothing at all rather than risk missing a posting and incurring big lawsuits.
NetChoice, law enforcement, and other legal experts worked with the House Judiciary Committee to craft a better way than SESTA. The result was the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). FOSTA clarified the original intent of Congress in enacting Section 230 – that Section 230 was never meant to be used as a shield for criminal activity, despite some judicial decisions that misread both the law’s text and congressional intent.
SESTA, on the other hand, despite warnings it could undermine the fight against online sex trafficking, was left untouched. It stands out as an example showing how crucial collaboration is to writing effective legislation.
Unfortunately, Congress combined language from SESTA and FOSTA. The result is an open door to new liability for platforms – creating unintended consequences. For example, CraigsList dropped its “Personals” section in anticipation of the lawsuit risks and we have seen similar activity from Reddit.
As courts begin interpreting these changes to Section 230, we hope the courts look to the FOSTA’s legislative record to learn how sponsors never intended to undermine the “Good Samaritan” feature of Section 230.
SESTA makes #3 on iAWFUL not because of its intent, but because of the damage that can be done when poorly written legislation hides behind humanitarian headlines.