Senate bill 1693, or the Stop Enabling Sex Traffickers Act of 2017 (SENSA) is a bill authored by Senator Rob Portman (R-Ohio) designed to hold companies liable for sex trafficking conducted on their websites. Supporters claim the bill will protect the victims of sex trafficking, and give peace of mind to survivors. If passed the law would pull back protections afforded to Internet companies in Section 230 of the Communications Decency Act (CDA). The bill has been generating considerable support in both the House and Senate. While no vote has been scheduled, a hearing on the matter is up before the Senate Commerce Committee on September 19, 2017.
Law Enforcement’s Attempt to Censor the Internet
In our opinion, SENSA shamelessly takes advantage of sex trafficking to push a bill that would criminalize Internet companies for not policing all of the content generated on their platform, which has been at the crux of innovation and economic stimulus since the 90s. The legislation would change Section 230 of the CDA to impose liability on companies for content posted to their platform(s) by others. This and the House companion bill (HB 1865) would force online platforms to become government surveillance agents and censors, with criminal prosecution as the penalty for non-compliance. This would be like prosecuting restaurant owners for not actively monitoring and then reporting all illicit discussions that occur within their premises.
The Communications Decency Act
The Communications Decency Act was an attempt by Congress to regulate pornography on the net, first introduced in 1995. However, before the bill went to conference the following year – which is where the final language of the bill is compiled in secret by select members of the congressional leadership – two members (a Republican and a Democrat) quietly inserted Section 230, otherwise known as the “Good Samaritan” clause.
Section 230(c)(1) states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Section 230(c)(2) reinforces the immunity by encouraging and rewarding voluntary actions by the service provider “to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected” and to “enable or make available … the technical means to restrict access to” objectionable material. Thus, neutral platforms have immunity but are empowered and encouraged to privately remove objectionable material.
The final bill was signed into law in 1996. While the portion of the law blocking porngraphy was deemed unconstitutional by the Supreme Court, Section 230 of the CDA was retained and became the foundation for new companies’ ability to enter the market with limited legal liability for speech generated by others. Section 230 led to extraordinary innovation and new markets that allowed companies like Facebook, Google, Amazon and Twitter to exist.
The ACLU praises Section 230 because it “wisely recognized that holding websites legally responsible for user-generated content would cripple the rapidly developing online world.” Due to this provision of the law, hundreds of billions of dollars’ worth economic strength has been created in the United States. One of the foremost Internet law scholars and Center for Democracy and Technology fellow, David Post, said of Section 230, “No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one.”
Opponents of the Bill
This is not the first effort to gut Section 230 from the CDA; it’s just the most credible in recent years. State and federal law enforcement and others attempting to censor free speech online have consistently attacked platform immunity, but those challenges have been repeatedly batted down by the Supreme Court. The people that want to dragoon private companies into carrying out government-imposed monitoring and censorship are well aware that Section 230 has to be amended to achieve their goals. Their first big effort came in 2013, when 49 Attorneys General wrote a letter to Congress asking for changes to Section 230 that would make websites liable for any content appearing on their site. Ultimately Congress did not act. This latest attempt is their next effort, and sadly it appears to be gaining traction this time.
Internet companies have been taking voluntary action under Section 230(c), and responding to legitimate law enforcement demands when presented with a warrant. This need to obtain a warrant after a demonstration of probable cause has been the bane of law enforcement since 1996, and it seems unlikely they will not stop until any agent or police officer can demand content without having to go before a court and demonstrate that criminal activity occurred. Anyone who demands a proper warrant would now face prosecution under this law. Site operators would be forced to individually scrutinize each of the billions of postings that occur each day to avoid criminal responsibility – which is, of course, an impossible task.
The bill has a VERY misleading name, and is being used as an excuse to censor the Internet. Sex trafficking existed long before the Internet, and this bill will do nothing to stop it. We score this legislation a 1, and cannot stress how terrible it will be for free speech and civil rights, and the damage it will cause to the Internet.