The biggest twist has come from the industry itself. After weeks of debate, a string of tech companies and industry groups have come around to supporting SESTA, leaving critics with few allies and narrowing options. It’s an unusual stance for the tech industry to take on a bill that some say would strike at some of the internet’s most fundamental protections. But as Google and Facebook face mounting pressure for regulation, SESTA increasingly seems like a workable compromise, giving prosecutors a new tool while fending off more onerous regulation. For anyone dealing with user-generated content, the result could be a dangerous new source of legal risk, one that only the largest companies are fully equipped to handle.
First introduced in August, SESTA is designed to make it easier for prosecutors to target websites like Backpage that host ads or otherwise enable sex work. While Backpage was ultimately taken down in a prosecution led by then-California Attorney General Kamala Harris (now a senator), the site’s owners escaped criminal trafficking charges thanks to the protections of Section 230, which prevents sites from being prosecuted for crimes committed by their users. SESTA would change that, explicitly stripping 230’s protections from any platform found to be assisting a sex trafficking enterprise.
But those prosecutions could have dangerous consequences, according to some legal scholars. When the bill was introduced, it was criticized as overly broad; Santa Clara University law professor Eric Goldman said it would “implicate every online service that deals with user-generated content.” The recent Manager’s Amendment to the bill pulled back some of those powers — limiting state lawsuits to a specific sex trafficking statute and narrowing the liability language — but critics haven’t been impressed. Goldman wrote that the change “slightly improves a still-terrible bill.” EFF took a similar line in a post this week, saying SESTA “continues to be a deeply flawed bill.”
The core of the problem is the new burden it would place on anyone hosting content online, and the strong new incentive to ban content before it poses a legal risk. Like traditional anti-piracy measures, SESTA focuses on platforms that provide “knowing assistance” to trafficking ventures. If Twitter gets a tip and doesn’t ban the named account — either because the tip is bad or because the evidence isn’t convincing enough — the message could be used as evidence that the platform knew trafficking was taking place. The result is a strong incentive to ban accounts and a new avenue for malicious reports, and that problem hasn’t changed with recent revisions.