Despite the abuse hurled at Silicon Valley from Capitol Hill over the past year, the relentless sound and fury has so far struggled to coalesce into successful legislation that clips the wings of powerful tech platforms.
But as the Senate prepares to hand online platforms their first real defeat in years, all that may be about to change.
The Allow States and Victims to Fight Online Sex Trafficking Act is up for a final Senate vote Wednesday. The legislation weakens Section 230 of the Communications Decency Act, a provision that limits the legal liability of online platforms such as Google and Facebook for content posted by their users. In so doing, the bill—which tracks closely to a popular Senate bill, the Stop Enabling Sex Traffickers Act—greatly increases the ability of victims and state attorneys general to sue platforms if their users facilitate or participate in online sex trafficking.
FOSTA has already passed the House, is extremely popular in the Senate, and is virtually guaranteed to be signed into law by President Trump. Many tech companies and advocacy groups that first opposed the legislation, including Facebook and the Internet Association, later dropped their complaints in the face of withering criticism.
When big tech first backed down last year, some observers speculated that sex trafficking was just too emotional an issue for tech platforms or politicians to oppose, and that FOSTA was little more than an aberrant setback for Silicon Valley on Capitol Hill.
But as concerns over the behavior of online platforms keep piling up, lawmakers are now touting FOSTA as the first of many axes to fall.
“I think it’s an important piece of legislation, because I think it does establish that we’re serious about clamping down on this kind of bad behavior,” said John Thune, the chairman of the Senate Commerce Committee. The senator specifically mentioned the “activities of social-media platforms with respect to the elections,” but added that “everything else” was also fair game.
That means the fallout from terrorist content, shady political ads, and nonconsensual pornography—all of which are routinely posted on a variety of online platforms—could soon be laid at the feet of the platforms themselves. Experts say that will likely raise a variety of free-speech concerns, worsen the online experience for law-abiding users, and potentially price smaller tech platforms out of business.
“Now Congress thinks it has all the answers, and it’s about to tell the internet how it can best run itself,” said Eric Goldman, a law professor at Santa Clara University and a leading expert on online liability. “That should make most of us pretty nervous, because the odds of Congress getting things right is low.”
Thune’s growing skepticism of the tech platforms is shared by many of his Democratic colleagues. On Monday, Sen. Richard Blumenthal said he hoped FOSTA “will be the start of other conversations—particularly now that we see what has happened with Facebook and Cambridge Analytica, and a clear need for more laws that protect privacy.”
Mark Warner, the ranking member on the Senate Intelligence Committee, is also warning tech platforms that there may be more shoes to drop. “The companies cannot continue to say ‘not our job,’” he said during a talk at the South by Southwest technology festival earlier this month. “Or you will see—not only Section 230, changes which will require some responsibility for the content—but you will see even more. So let’s get our act together.”
Even some of tech’s erstwhile defenders now say FOSTA may be just the beginning. Sen. Ron Wyden has railed against the bill for months, arguing that it’s more likely to incentivize online platforms into turning a blind eye toward sex-trafficking content altogether.
But when asked last week whether the tech platforms would face additional regulation, Wyden didn’t mince words. “The idea that somehow the companies have these neutral pipes is not a view I share,” he said. “They blew it on the 2016 election, and if they don’t step up to their responsibilities on a host of these social issues, the bill that may come to the Senate floor will not be the only one.”
Even without new laws, there’s widespread concern that FOSTA’s weakening of Section 230 will give regulators and prosecutors too much power to police types of online content unrelated to sex trafficking.
“These platforms will be exposed to significantly more liability for what their users do with their service, and will create an incentive to review, censor, or disallow user comments—a loss for free speech online,” said Karen Gullo, a spokesperson for the Electronic Frontier Foundation. “The silencing effect that FOSTA would have on online speech goes well beyond the narrow slices of the internet that the bill’s supporters claim it targets.”
But tech experts also believe that FOSTA paves the way for new legislation mandating further platform liability. Berin Szoka, the president of libertarian tech group TechFreedom, said lawmakers have made it clear that the bill “is just the beginning of a broader push to make online intermediaries responsible for policing user content.”
“Congress is opening a Pandora’s box of internet regulation,” Szoka warned.
So far, lawmakers are reserving most of their ire for sprawling tech platforms like Google and Facebook, which often appear to operate with near-impunity.
But while online behemoths like Facebook can hire scores of employees to try to moderate content and ensure compliance, that won’t be the case for smaller platforms offering innovative new products. Goldman worries that increasing liability for user-posted content won’t only fail to prevent illegal activity— it could cripple innovation online.
“If Congress is concerned about the consolidated power of Google and Facebook, Section 230 is actually part of the solution,” he said. “And if they amend Section 230 they’re going to have the next-order problem, which is to figure out how to keep the marketplace open for new entrants.”