WASHINGTON D.C. —­­ Next week, the Senate is scheduled to vote the Stop Enabling Sex Trafficking Act (SESTA) and is expected to pass the bill. While intended to help bring those participating in online sex trafficking to justice, SESTA is likely to be counterproductive to this end, and raises a number of constitutional and free speech concerns as well, although two amendments introduced by Sen. Ron Wyden would help address some of these problems. See our post about crucially needed amendments to the bill here.

Late last month, the House passed its own version of the bill, the Fight Online Sex Trafficking Act (FOSTA). The Department of Justice, along with numerous prosecutors, have argued that language in FOSTA, amended by attaching SESTA to it, would actually make it more difficult to convict the owners of websites that aid in sex trafficking.

“Congress has repeatedly been told that SESTA’s knowledge standard will not make it easier to bring sex traffickers to justice,” said TechFreedom President Berin Szóka. “It is generally too difficult to prove that websites knew the age of those being trafficked. Even worse, the knowledge standard incentivizes websites to be less active in monitoring content of all kinds out of fear of gaining knowledge of trafficking that could lead to prosecution.”

“It’s not too late to fix the bill’s biggest problems,” said Szóka. “Sen. Wyden has introduced the most important amendment, which was originally proposed by Law Professor Eric Goldman, the leading expert on Section 230, after his Senate testimony in November. Wyden’s amendment would ensure that websites do not face greater liability for attempting to monitor and filter objectionable content. This immunity already exists under Section 230 today, and SESTA’s sponsors insist they do not intend to supersede it, but their bill is so poorly drafted, it would. Thus, Wyden’s amendment is necessary to do what the bill’s sponsors say they intend: preserve Congress’s original intent to encourage responsible websites to act as Good Samaritans. This amendment won’t stop prosecution of sites like Backpage, but it will prevent the bill from backfiring and harming the very victims it’s supposed to protect.”

“Wyden has also proposed a second amendment, which would appropriate $20 million for criminal enforcement,” Szóka concluded. “If the Senate won’t pass Wyden’s amendments, it isn’t serious about protecting the victims of sex trafficking. A third amendment is vital to avoid court challenges: the Department of Justice has objected that the bill’s retroactive enforcement provision violates the Constitution’s ban against ex post facto punishments. There’s never any excuse for passing obviously unconstitutional legislation. Finally, it remains unclear exactly what SESTA’s ‘knowledge’ standard would mean in practice. The bill’s sponsors have repeatedly offered different interpretations. Whether through amendment or colloquy on the floor, the bill’s sponsors should make clear that, as the DOJ has argued, SESTA would require knowledge of specific trafficking content. Broader interpretations would expose responsible sites to prosecution and, if Goldman’s amendment is not passed, risk discouraging them from taking responsibility for monitoring trafficking and other objectionable content.”

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

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TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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