Senator Rob Portman and a bipartisan group of 27 other members introduced the Stop Enabling Sex Traffickers Act of 2017 (or SESTA) to end this safe harbor for internet companies that knowingly facilitate sex trafficking and other crimes through content hosted on their platforms. SESTA would allow state prosecutors and victims to take down websites that callously ignore the enslavement of children in their pursuit of profit.
Passing this bill should be easy. But it’s been stalled by a Silicon Valley campaign against it. Why would tech oppose a bill aimed at stopping sex trafficking? Because it threatens the Valley’s unique ability to edit mass media content without being held accountable for the results.
At common law, the Constitution’s guarantee of editorial freedom for the press did not immunize publishers from liability for their editorial decisions. A classic example is the rule for defamation: namely, that someone who republishes defamatory matter is subject to liability as if they had published it originally. The common law places this responsibility on publishers to prevent defamatory matter from spreading far and wide through the convenience of mass media technologies. It also encourages publishers to exercise due care when using mass media’s awesome power.
In contrast to those who exercise direct editorial control over content, publishers that merely distribute others’ materials, such as bookstores and television network affiliates, are subject to liability for defamation at common law only if the distributor knows the material is defamatory. This limiting standard recognizes that imposing a duty to monitor content on nationwide distributors who act as “passive conduits” for third-parties would pose an undue burden on the free flow of information. Before section 230 was adopted, internet companies were generally treated as distributors for the purpose of defamation law, and thus weren’t liable for content posted by their users without knowledge of its defamatory nature.