SESTA: The Rush to Pass Unconstitutional, Counterproductive Legislation

Lawmakers Know Better But Won’t Fix Obvious Problems

In the late 1990s, Congress tried twice to “clean up the Internet.” Both bills were struck down as unconstitutional. In a 7–2 decision that transcended party lines, the Supreme Court hailed the Internet as “a unique and wholly new medium of worldwide human communication.” In 2011, Internet activists rallied against a bill that would have imposed draconian penalties on Internet “intermediaries” like website operators that failed to stop copyright infringement — raising larger concerns about creating a matrix for online censorship. The Stop Online Piracy Act (SOPA) didn’t even make it out of committee.

Now, Congress is rushing to pass another bill to impose sweeping, vague liability on online intermediaries — even after the Department of Justice (DOJ) declared parts of the bill unconstitutional. There’s still time to fix the bill’s biggest problems, but lawmakers have shown little interest in doing so. They love talking about helping sex trafficking victims but don’t seem to care whether the bill ends up hurting those it’s supposed to help.

Three weeks ago, the House Judiciary Committee passed the Allow States and Victims to Fight Online Sex Trafficking Act. FOSTA represented a thoughtful, legally sound approach to the problem: enable more criminal prosecutions of sites that enable trafficking without sweeping up responsible sites, or inadvertently discouraging them from self-policing or cooperating with law enforcement. Intent on claiming a feel-good win, GOP House Leadership insisted on combining Goodlatte’s FOSTA with the Senate’s radically different Senate Stop Enabling Sex Traffickers Act (SESTA).

SESTA’s most obvious problem is that it criminalizes conduct that occurred prior to its enactment. As any first-year law student could tell you, that violates the Constitution’s prohibition on “ex post facto” punishment. In fact, DOJ did point this out, but the House passed the merged bill anyway — without fixing the problem. Such drafting mistakes happen when legislation gets rushed through the wrong committee: even though SESTA revolved around changing federal criminal law, it was the Senate Commerce Committee had asserted jurisdiction. The Senate Judiciary Committee, the experts on criminal law, simply sat on the sidelines. The advice of Goodlatte’s House Judiciary committee — that SESTA would backfire — was simply ignored.

SESTA will harm trafficking victims in two ways. First, as Goodlatte noted, SESTA’s amendment to the existing trafficking statute will make prosecutions harder, not easier. Second, SESTA will discourage responsible websites from from taking measures to monitor objectionable or harmful content. In fact, this was the primary purpose of enacting the Section 230 immunity back in 1996: Congress recognized that, the greater the legal liability facing platform operators, the more perverse the incentive for them to stick their heads in the sand.

In other words, websites will avoid building tools for monitoring and removing harmful content for fear that those tools will become mandatory — and that failing to remove all illegal content will increase their liability. SESTA’s sponsors essentially acknowledge that this is a potential problem, but their proposed solution won’t actually fix the problem. SESTA preserves part of Section 230’s immunity, but 230(c)(2)(A) protects only the removal of objectionable content, not monitoring. SESTA does supersede Section 230(c)(1), the heart of the law’s immunity, which protects websites from being held responsible for user content generally — including, implicitly, monitoring

Sen. Wyden has introduced an amendment that would fix this problem by explicitly protecting content monitoring and providing that websites won’t increase their liability by building moderation tools. That wouldn’t stop prosecutions of sites like Backpage.com but it would protect responsible sites and ensure the law doesn’t backfire. A second Wyden amendment would appropriate $20 million in funding for criminal prosecutions.

If the Senate is serious about protecting sex trafficking victims, they’ll approve both his amendments. Unfortunately, there’s no indication that this will happen. SESTA’s sponsors don’t give a fig about practical or even constitutional concerns. Amending the bill in the Senate would require another vote in the House, and they just don’t want to bother — probably because that might give Goodlatte an opportunity to fix other problems in the bill, like the fact that SESTA’s sponsors keep saying different things about how the bill’s criminal liability would actually work.

So don’t hold your breath. The Senate will probably rush the bill through — and the President will sign it. So what if his own DOJ calls the bill unconstitutional and counterproductive? So what if legal experts are already pointing out other potential constitutional challenges? As they say these days, #NothingMatters.

The bigger concern is where this is all heading. At South by Southwest, the tech world’s biggest confab, Sen. Mark Warner candidly, breezily admitted what SESTA’s critics have been saying since the bill was introduced last summer: that this is merely the beginning of a broader attempt to make Internet companies “clean up the Net,” as they said in the 90s. As Warner: put it: “I think we need a full debate about responsibility on content. … If you start with sex trafficking, it possibly could move to other areas.”

The writing on the wall couldn’t be clearer: Congress is coming, and they’re not going to be bogged down with details. The concerns of thoughtful lawmakers like Republican Goodlatte and Democrat Wyden, who supported Section 230 back in 1996, will simply be ignored.

Brace yourselves. This debate is about to get much, much worse.