No Safe Harbor: Congress Threatens Free Speech Online
Thanks to a sex trafficking bill, the Internet’s days as the bullhorn of democracy may be limited.
In a JURIST guest column discussing a bill that could make online intermediaries such as Facebook and Google liable for user content, CFJ legal affairs fellow Christina Pesavento and director of public policy Ashley Baker write that "[t]his narrow exception for sex trafficking is the camel’s nose under the tent, and It is difficult to overstate the significance of the Section 230 protections that SESTA threatens to erode," and point out that "[w]ithout Section 230 [of the Communications Decency Act], intermediary services that host third-party speech would be subject to publisher liability under a patchwork of complex and potentially conflicting state laws."
Explaining that "[c]alled 'the cornerstone for free speech online,' Section 230 protects online speech by granting 'interactive computer services' limited immunity from third-party speech liability," Pesavento and Baker lament that "SESTA would dramatically narrow the safe harbor by subjecting Internet services to state criminal prosecution as well, and to civil actions targeting user content that violates federal sex-trafficking laws."
Although efforts to fight sex trafficking are certainly laudable, Pesavento and Baker note that:
[L]ittle would be gained in the efforts to stop sex trafficking. Even sympathetic experts have questioned whether SESTA would be effective and many say it could be counterproductive by driving the activity farther underground… Paradoxically, even though SESTA’s state-law preemption exception would encourage further policing of user content, its linking of liability to a broad knowledge standard – SESTA speaks of “knowingly” benefiting from sex trafficking – could actually discourage intermediaries from monitoring content for misconduct.
If Congress modifies Section 230's liability protections, Pesavento and Baker write, "the services that make online speech possible would not only face a slew of defamation suits and other costly litigation; they would also come under enormous pressure to filter, moderate, or otherwise censor their users’ speech. Many intermediaries may opt not to host or transmit any user content at all."
Pesavento and Baker conclude that "Section 230 is the law that made today’s Internet possible. Without a robust safe harbor, the vast democratic forum … would cease to exist as we know it. While fighting sex trafficking is certainly a goal worthy of pursuing, damaging that engine and sacrificing our freedom of speech is too high a price to pay."