Tech, Civil Society Fear Problems With Senate Online Sex Trafficking Bill Changing CDA
A bipartisan Senate bill aimed at curbing online child sex trafficking by amending Section 230 of the Communications Decency Act, considered a foundation in expanding the U.S. internet economy, will have an uphill battle, predicted technology and civil society advocates who say there's a better approach. They said Tuesday that fighting online trafficking is needed, but the legislation is too broad and would have unintended consequences.
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Introduced by 20 senators, the Stop Enabling Sex Traffickers Act would "clarify" Section 230, allowing victims "to seek justice against websites that knowingly facilitated the crimes against them," said a news release, bill text and other materials. The bill would eliminate federal liability protection against such websites and give states power to take action for such violations, not just DOJ. The legislation was born out of a 20-month investigation against Backpage.com by Senate Permanent Subcommittee on Investigations led by Chairman Rob Portman, R-Ohio, and then-ranking member Claire McCaskill, D-Mo., both sponsors. The investigation implicated the website operator, saying it knowingly facilitated prostitution and child sex trafficking and tried to conceal evidence (see 1701100001).
But Sen. Ron Wyden, D-Ore., issued a scathing criticism of the bill, calling it a "wrecking ball" to Section 230. He called it an example of lawmakers' "technical ignorance." The bill is so broad, he said, that companies wouldn't be able to avoid "endless lawsuits, no matter how actively they police their platform."
Yiota Souras, general counsel for the National Center for Missing & Exploited Children, which supports the legislation, told us the bill is "appropriately narrowed" to address sex trafficking. She said it doesn't make any ISP or "bulletin board" responsible for all third-party content. The revised statute would affect a service provider if there's a "knowing, active conduct in furtherance ... of sex trafficking," she said. NCMEC doesn't support similar House legislation (HR-1865) introduced by Rep. Ann Wagner, R-Mo., with nearly 100 co-sponsors. Souras said it's broader than the Senate bill, which could gain support as stakeholders discuss it.
"The ramifications of eliminating the liability shield [are] enormous," said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon. The "big worry" is the Senate bill gives state attorneys general power to go after websites that knowingly engage in online trafficking, but Falcon said "knowing" may be interpreted differently by different states. By "tinkering" with liability protection, he said, internet companies and startups might become "purposely blind" of what users are doing or filter everything, defeating the purpose of open platforms. He said EFF, not involved in the bill's drafting, will remind lawmakers of the importance of 230, and said proponents of the bill will "undersell" the consequences.
Ed Black, president of Computer & Communications Industry Association that has Amazon, Facebook, Google and Microsoft as members, said the bill is "counterproductive" and would increase liability for legitimate companies while undermining current efforts to detect criminal activity. Internet Association President Michael Beckerman said the bill also might affect the free and open internet, including speech.
"Because of optics this will be difficult for the industry to fight but the administrative risk is simply too high," said technology industry analyst Rob Enderle. "'Facilitate' is a pretty broad term and no firm likes risk without clear bounds." Even if enforcement were well resourced, he said the website setup process is automated and larger providers host millions of sites and will try "to fly under the radar." It'll be tough for law enforcement to address the problem and, instead, they should team with industry to fight it.
Consumer Watchdog Privacy Project Director John Simpson said Section 230 shouldn't protect "exploitative" businesses, likening it to the First Amendment that doesn't protect those shouting "fire" in a crowded movie house. He said companies including Facebook, Google and Twitter are also pushing for similar language in a new North American Free Trade Agreement deal.