Why Big Tech Backed Down on Sex-Trafficking Legislation

Though the Internet Association calls it a compromise, others say pressure on the Russia issue and the emotional minefield surrounding sex trafficking caused the group to throw in the towel.

From left, Backpage CEO Carl Ferrer, former owner James Larkin, COO Andrew Padilla, and former owner Michael Lacey are sworn in prior to testifying before the Senate Homeland Security and Governmental Affairs subcommittee hearing into Backpage.com's alleged facilitation of online sex trafficking on Jan. 10.
AP Photo/Cliff Owen, File
Brendan Bordelon
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Brendan Bordelon
Nov. 7, 2017, 8 p.m.

With Silicon Valley weathering its worst-ever year in Washington, it was perhaps only a matter of time before big tech made a tactical retreat on Capitol Hill. And as the tech industry’s top lobbying group now flips to support legislation it previously opposed, experts wonder whether other concessions on hot-button issues are still to come.

On Friday, the Internet Association—the D.C.-based lobbying arm of the most powerful tech firms—dropped its opposition to the Stop Enabling Sex Traffickers Act, a popular Senate bill that increases the legal liability of online platforms accused of knowingly assisting, facilitating, or supporting sex trafficking. The group framed the move as a compromise consistent with concerns that it raised during a Senate Commerce Committee hearing in September. “Important changes made to SESTA will grant victims the ability to secure the justice they deserve, allow internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem,” said Internet Association president Michael Beckerman.

But some experts are less sanguine about the compromise, which they say doesn’t do nearly enough to soften the bill’s damaging impact on the internet industry. They believe the Internet Association chose to cut its losses instead of continuing to argue over an issue as emotionally laden as sex trafficking. As legislators also weigh a crackdown on tech platforms for their role in spreading Russian disinformation during the 2016 election, experts say the Internet Association is choosing to expend its energy on a fight it can actually win.

“It’s a resource-constrained time for tech policy, so you’ve got to kind of pick your battles,” said Evan Engstrom, the executive director for Engine Advocacy, a lobbying group for tech start-ups that continues to oppose the sex-trafficking bill.

“There was such a strategic cost to opposing SESTA,” said Eric Goldman, a law professor at Santa Clara University who argued against the bill during September’s Senate Commerce hearing. “And if it wasn’t going to be winnable anyway, you cut your losses and move on. Because you’ve got so many other battles you’ve got to fight.”

How big tech’s alleged capitulation on SESTA will impact a broader Capitol Hill crackdown remains unclear. Some believe that the legislation will be a precedent to justify new liability requirements on other online content—particularly posts promoting terrorism. But others see a special confluence of factors in the SESTA debate, saying it’s not necessarily indicative of a full-court press against big tech.

“This is kind of a unique situation,” said Engstrom. “There are very few issues that are going to be seen as compelling as stopping sex trafficking. Even issues related to political ads aren’t getting the type of immediate support that you’d think they would, in light of how visible that issue has been.”

Even before the Internet Association accepted last week’s compromise, SESTA was already a popular bill. The legislation—which now has 41 bipartisan cosponsors—stemmed from a years-long federal investigation into Backpage, an online classified-ad platform accused of knowingly permitting sex trafficking on its website. The bill is expected to sail through a Senate Commerce Committee markup scheduled for Wednesday morning. Even Democratic Sen. Ron Wyden, one of the few lawmakers to speak out on the bill’s purported negative impact in September, appears to have cooled his opposition. “Right now I’m just looking at the changes,” he told National Journal.

Those changes—while still less than ideal for Silicon Valley—aren’t exactly insignificant. The industry feared SESTA’s first draft because of the broad leeway it gave state attorneys general to bring criminal cases against online platforms, as well as an unclear definition of when an online platform “knowingly” facilitates trafficking. The new draft, however, requires state prosecutors to conform to federal sex-trafficking statutes and tightens up the “knowing” standard.

“SESTA is still a terrible bill—it’s bad policy, and it’s badly executed,” said Goldman. “The question that I’m focused on is whether it poses an existential threat to the internet. And I think it’s less likely to kill the internet than the prior draft would have been.” Goldman added, however, that many of those tweaks would likely have happened anyway, as the bill’s sponsors found obvious holes in their legislation.

Alexandra Levy, a law professor at the University of Notre Dame who focuses on sex trafficking, believes the Internet Association was looking for a face-saving way to extricate itself from a losing fight. “I can say from experience that it’s not easy to be on the other side of a bill called the ‘Stop Enabling Sex Traffickers Act,’” she said. Levy opposes SESTA, arguing that it gives platforms a legal incentive to stick their heads in the sand and will drive trafficking to darker corners of the web.

Levy worries that the legislation is the opening salvo in a campaign to take down Section 230 of the Communications Act, a provision providing tech platforms with immunity from prosecution for content posted by their users. She believes content promoting terrorism is likely the next—but by no means the last—target. “All of these laws will have the same effect of incentivizing platforms to know less and regulate more—a price that will ultimately be paid by users,” she said.

Democratic Sen. Richard Blumenthal, one of SESTA’s strongest proponents and an architect of last week’s compromise, has hinted there may be more shoes to drop. “There’s an important and profoundly significant recognition of responsibility here,” Blumenthal said Tuesday when asked whether SESTA is the first in a wave of new regulations. “The social-media platforms are more than just a vehicle. They have a responsibility.”

But experts believe that big tech won’t submit as readily on other issues. While Silicon Valley has neither an ideological nor a pecuniary interest in defending the free speech rights of sex traffickers, that won’t be true in most other cases.

“I do think the internet companies will feel differently with other kinds of regulatory efforts,” Goldman said. “In some cases that will be because they’re more ideologically supportive of the content that’s being targeted. In other cases it’ll be because it’ll potentially cut into their revenues in a way they care about.”

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