How do you argue against a bill designed to crack down on something as heinous as online sex trafficking?
It’s a question Silicon Valley has been wrestling with for weeks, as its defenders in Washington seek to blunt enthusiasm in the Senate for legislation that it worries will expose tech companies to unnecessary lawsuits and cripple innovation while doing little to actually prevent sex trafficking. And it comes at a time when the industry finds itself on the outs with both political parties and is struggling to push its policy priorities through a skeptical Congress.
Tech companies made their case before the Senate Commerce Committee on Tuesday, as lawmakers convened to discuss the Stop Enabling Sex Trafficking Act (SESTA), a bipartisan endeavor with no fewer than 28 Senate cosponsors. Heartrending testimony from Yvonne Ambrose, the mother of a 16-year-old girl who was murdered after being sold for sex on the website Backpage.com, made it clear why the legislation is so popular. The hearing room fell silent as Ambrose, choking back tears, described her daughter Desiree Robinson’s rape and murder. “If there were stricter rules in place for posting on these websites, then my child would still be alive today,” she said.
The bill would amend Section 230 of the Communications Decency Act, which currently prevents state prosecutors or trafficking victims from holding tech companies accountable for the actions of third-party posters on their online platforms. The Department of Justice retains the power to prosecute companies should it determine a certain level of culpability, but proponents of SESTA say that system is woefully insufficient to combat the rising scourge of online trafficking. The legislation would allow state prosecutors to pursue criminal cases, and victims to seek civil penalties, against internet companies suspected either to have “knowledge” of or to have otherwise “facilitated” sex trafficking on their platforms.
It’s those words—“knowledge” and “facilitation”—that send the tech industry’s anxiety levels spiking. The Internet Association, Silicon Valley’s primary mouthpiece in Washington, argues that these concepts are ill-defined under SESTA and require clarification before being signed into law. Without that clarification, the fear is that overzealous attorneys general could accuse online platforms of being aware of or facilitating sex trafficking even if the companies have acted in good faith. “We are concerned that SESTA opens up liability for frivolous lawsuits that do little for victims of sex trafficking,” Abigail Slater, the Internet Association’s general counsel, said during the hearing.
California Attorney General Xavier Becerra, a former Democratic member of Congress, said that argument misunderstands the high bar that prosecutors face when pursuing criminal cases. “Don’t be dissuaded,” Becerra testified. “Regardless of what anyone says, prosecution for sex trafficking requires criminal intent. No one can be convicted for acting in good faith.”
Becerra said the federal government needs assistance in prosecuting online platforms that willfully allow or abet sex trafficking, and that as it now stands he’s virtually powerless to take bad actors like Backpage.com to task. “We have a chance to do something that will essentially expand the power of the federal government to do what it should be doing: prosecuting,” he told reporters after the hearing. “But because of resources or whatever other reason, they haven’t. And so it’s a travesty when you’ve got the evidence but you can’t go.”
Democratic Sen. Ron Wyden of Oregon was the lone lawmaker to dissent from Becerra’s interpretation. “I take a backseat to no one in this Senate in the fight against sex trafficking,” Wyden testified. “I just believe that the legislation being considered today is the wrong answer to an important question.” The senator worried that SESTA has the potential to kill innovation by forcing small internet start-ups to lawyer up. Wyden warned it may even encourage tech firms to “hide their heads in the sand” rather than monitor their platforms for trafficking activity, since any knowledge of that activity would potentially make them vulnerable to prosecution.
Wyden credited America’s success in the tech sphere to “our foundation of internet laws that kept lawyers and politicians and tax collectors from hobbling innovation and hobbling growth. Those forces never give up, and I’m sad to say they’re at work right now.”
While the gap between the two sides is stark (and support for the legislation from senators is apparently overwhelming), there may still be a potential opening for compromise. Slater told lawmakers on Tuesday that the Internet Association is open to amending Section 230 to allow sex-trafficking victims to bring civil cases against online actors found to have acted with both knowledge and intent. And Senate Commerce Chairman John Thune—who, unlike his committee colleagues, has yet to sign onto the legislation—encouraged Slater to keep talking to lawmakers “to figure out if there’s a way we can resolve what some have acknowledged are, perhaps, unintended consequences in the current draft of the bill.”
But Thune also said it was important “to get to a place where we can move forward,” making it clear he intends to act on the bill soon. “I think everybody agrees this is an area where need to provide clarity,” he said.