With Vote Expected, Tech Industry Remains Divided Over FOSTA
Tech stakeholders remain divided over anti-sex trafficking legislation the Senate is poised to vote on this week, those on both sides told us. Sen. Rob Portman, R-Ohio, author of the Stop Enabling Sex Traffickers Act (SESTA) (S-1693) (see 1803020024) plans to pursue the House-approved version of the bill, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) (HR-1865). Facebook and the Internet Association support the House measure, but several tech groups remain concerned about the process in which the bills were combined in the House, and fearful the legislation will result in widespread censorship of content.
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Industry opponents are more concerned about liability risks than offering sex-trafficking victims solutions, said Consumer Watchdog President Jamie Court. “I don’t know of any credible group that stands in the way of this, who is standing up for victims’ rights,” he said, saying groups like Engine are lobbying for the interests of Google, rather than internet accountability.
It’s just the opposite to Engine Executive Director Evan Engstrom. Big companies might be able to handle content moderation obligations and deal with the inherent risks, but small companies may not engage in content moderation at all, given the chances they would be held liable, he said. Ambiguity is a problem because it makes it harder for websites to do proactive content moderation, he said. “We want to clarify that platforms who are engaging in proactive content moderation, in order to stop sex trafficking, can’t be held liable simply because they are doing that.” He said the goal isn't to eliminate liability but to make sure there aren’t counterproductive, unintended consequences, which hurt trafficking victims. To proponents who claim the bill is narrowly tailored to go after only bad actors, he said, lawmakers and DOJ offered conflicting interpretations of the legislation. His organization has concerns about how the bill defines culpable knowledge and the ambiguity about liability. “It’s largely a question of being unsure about when a platform can be held liable, what it needs to do, whether engaging in content moderation will potentially trigger liability or not,” he said.
Committee for Justice President Curt Levey anticipates the legislation passing the Senate because all groups are against sex trafficking, not because it’s wise legislation. “You could name 10 other causes, from saving puppies to keeping our schools safe, where everyone is going to be afraid to oppose even bad legislation that makes further exceptions to [Section] 230” of the Communications Deceny Act, he said.
Court argued the only groups that believe this legislation is bad are groups “tied to the hip” of Google: “Even Google and Facebook cannot stand up publicly and oppose this because it’s such a commonsense, simple measure.”
Associate Director-Tech and Innovation Policy Charles Duan said the R Street Institute has issues with the "last-minute" approval process in the House, which resulted in the combined version of FOSTA and SESTA. “We would hope that the Senate would take on a more reasoned debate over some of the unintended consequences and potential ramifications of that sort of odd combination.” He echoed comments from Engstrom, saying the high startup costs for monitoring and compliance could substantially affect small companies trying to drive innovation. Content filters that are overbroad can censor legal speech, and there are concerns about internet users’ free expression, Duan said. Court said the “internet freedom” argument is a “phony issue. This is really one example of some issues are bigger than either party and even Silicon Valley’s ability to stop.”