WASHINGTON D.C. —­­ Today the House is scheduled to vote on the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). Most notable among the amendments allowed yesterday by the Rules Committee that offered by Rep. Mimi Walters to merge into FOSTA a radically different Senate bill, the Stop Enabling Sex Traffickers Act (SESTA).

The House Judiciary Committee report on FOSTA confirmed what prosecutors have said: SESTA’s approach would not aid them in bringing trafficking websites to justice. Indeed, a last-minute letter from the Department of Justice argues that SESTA would make it harder to prosecute sex trafficking sites “by effectively creating additional elements that prosecutors prove at trial.” SESTA would also upset a balance carefully struck by Congress in 1996 to ensure that fear of liability does not discourage responsible websites from assisting in the fight against trafficking.

The following statement may be attributed jointly to TechFreedom and Engine:

The process failure here is astounding: conjoining two fundamentally incompatible bills on the House floor will harm the very people lawmakers are trying to protect. FOSTA was carefully crafted by the House Judiciary Committee, while SESTA has not been reviewed by the Judiciary Committee in either chamber. Combating sex trafficking is fundamentally a law enforcement problem and demands law enforcement expertise. Why are lawmakers rushing to vote on this when law enforcement is still weighing in to express its concerns?

Both the House Judiciary Committee and the Department of Justice have told Congress that SESTA won’t help prosecutors — because it’s generally too difficult to prove that websites knew the age of those being trafficked. Worse than being useless, SESTA’s knowledge standard will do real harm: if responsible operators fear prosecution for gaining knowledge of trafficking on their sites, they’ll inevitably do less monitoring — and not just for sex trafficking. That, in turn, means, they’ll do less to take down bad content and to assist law enforcement.

This ‘Moderator’s Dilemma’ is precisely why Congress enacted Section 230 back in 1996. SESTA’s sponsors implicitly acknowledge the problem by explicitly preserving part of Section 230 immunity, but the part they preserve, Section 230(c)(2)(a), only protects content removal — not monitoring. Thus, under SESTA, monitoring content could make websites more likely to be prosecuted or sued.

SESTA’s burden will fall heaviest on the smallest, youngest companies that host user generated content. Big tech companies have budgets just for content moderation that dwarf the revenues of the “long tail” of tech companies. These giants might calculate that they can manage SESTA’s legal risks — or even that SESTA will protect them from competition from smaller upstarts. But small companies will not be able to manage such risks; SESTA will force them to do less to combat sex trafficking.

Congress must fix this problem. Law Professor Eric Goldman, the leading expert on Section 230, proposed a one-sentence amendment back in November. By ensuring that websites are not held liable for knowledge the acquire in monitoring content, or for not doing more monitoring just because they do some monitoring, his amendment would ensure that websites are not discouraged from monitoring content. This isn’t the only amendment lawmakers should consider, but if SESTA’s going to be added to FOSTA, Goldman’s amendment is the only way to avoid the Moderator’s Dilemma. Congress owes it to sex trafficking victims to take the time to get this right. If the House won’t do so, the Senate Judiciary Committee must assert itself.


We can be reached for comment at media@techfreedom.org. See more of our work on SESTA and FOSTA, including:

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