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Experts Warn Congress Anti-Sex Trafficking Bill Could Backfire

Senate Homeland Security and Governmental Affairs Permanent subcommittee waits to open a subcommittee hearing into Backpage.com on Jan. 10, 2017.

Senate Homeland Security and Governmental Affairs Permanent subcommittee waits to open a subcommittee hearing into Backpage.com on Jan. 10, 2017. // Cliff Owen/AP

Internet law experts, human rights advocates and lawmakers warned Congress that a controversial anti-sex trafficking bill may allow human traffickers to increase their online presence, not eliminate it.

The current version of Stop Enabling Sex Traffickers Act may reduce web services’ incentive to moderate content on their sites, experts told the Senate Commerce, Science and Transportation Committee hearing Tuesday.

Supporters praise SESTA as a much-needed weapon to take down online forums that enable sex trafficking. Opponents argue the bill could stifle innovation and open the door for frivolous lawsuits against tech companies.

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While all parties agreed the government should go to great lengths to fight sex trafficking, they butted heads over whether SESTA is the best fix for the problem.

The bill would amend Section 230 of the Communications Decency Act of 1996, a piece of legislation that prevents websites from being held legally liable for content generated by users. As it stands, Section 230 immunity doesn’t apply in federal criminal cases, but SESTA would eliminate immunity in state criminal and civil lawsuits as well.

Doing so would allow groups other than Justice Department to go after any party with “knowing conduct” that facilitates sex trafficking, like Backpage.com has been charged with previously. Many state and local jurisdictions have filed suits against online forums that facilitate sex trafficking, but CDA protections have always shielded them from the charges.

“We need the tools to go after these folks,” said California Attorney General Xavier Becerra. “Without opening trafficking sites to state and local prosecution, we’re fighting with two hands tied behind our back.”

Others, such as Santa Clara University law professor Eric Goldman, voiced concerns that the law may be applied too broadly, particularly under a standard of “knowing conduct.”

Currently, many internet services police their sites for harmful content. Sex trafficking ads and other posts, however, often use coded language that can slip through filters and moderation algorithms. Such behavior could be considered “knowing conduct,” Goldman argued, incentivizing some companies to moderate sites less to shield themselves from liability.

“As more services do less to monitor third-party content, we will see more socially harmful content online that would’ve been moderated today,” Goldman said. “Instead of stopping bad actors, SESTA will help them proliferate.”

Some lawmakers, including SESTA co-author Sen. Richard Blumenthal, D-Conn., believed the bill would instead give tech companies the impetus to “do the right thing,” while others acknowledged that such behavior could have a high price tag. The costs of rigorous filtering services and lawyers to defend against potential SESTA lawsuits could bankrupt many cash-strapped startups and small companies.

“When it comes to legislation, we’ve had the most success when protecting Americans’ rights and protecting incumbent industries from smothering the innovators,” said Sen. Ron Wyden, D-Ore., who co-authored the CDA, at the hearing. “I believe the legislation being considered today is the wrong answer.”

Tuesday’s hearing marked the first public discussion of SESTA since the bill was introduced on Aug. 1. Lawmakers said they plan to continue working with advocates and the tech industry to craft legislation addresses online sex-trafficking without any unintended consequences.

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