9:07 a.m.: The hearing ends on a positive note, with multiple members of the committee expressing a desire to address sex trafficking in a way that preserves the protections for online speech in Section 230.
We hope that lawmakers are beginning to see through the shrewd motivations behind SESTA and ASVFOSTA. We hope that they're willing to do the hard work of seeking out the right solutions to fight trafficking and support victims, not politically convenient ones that will damage the online communities we all depend on every day. A serious problem calls for serious solutions.
We also hope that Congress is beginning to notice that current federal law already permits the Department of Justice to prosecute online platforms that are found to be directly contributing to unlawful online speech. If the DOJ is failing to act, the public should ask it why.
Thank you for joining our live coverage. If you're worried about lawmakers undermining free speech, community, and innovation online, please write to your members of Congress and urge them to reject SESTA and ASVFOSTA.
Tell Congress: Stop SESTA and ASVFOSTA.
8:53 a.m.: Former Rep. Cox discusses Fair Housing Council v. Roommates.com in explaining how Section 230 doesn't immunize a platform from civil litigation when that platform is directly involved with the creation of unlawful speech. Once again, If the current allegations against Backpage are accurate, then there is nothing shielding it from civil or criminal litigation.
8:38 a.m.: Rep. Martha Roby tells a harrowing story of sex trafficking. It's specifically because of the horrors of trafficking that Congress must be wary of bills that would do more harm than good. A serious problem calls for serious solutions.
Rep. Roby asks, "If not this, then what?" That's a great question. And again, members of Congress must consult with harm reduction experts to find the right solutions. In her letter to the Senate Commerce Committee [PDF], anti-trafficking advocate (and herself a trafficking victim) Kristen DiAngelo outlines several proposals that Congress could take to fight trafficking: for example, enacting protective measures to make it easier for sex workers to report traffickers.
There are currently a dozen bills in Congress addressing sex trafficking. Those bills should be receiving focus and debate in Congress—not a shrewd attempt to erode laws that protect all of us online.
8:20 a.m.: Rep. John Conyers asks Evan Engstrom whether SESTA and ASVFOSTA would do anything to address sex trafficking. It's a great question: this far into the SESTA debate, there's been no evidence that attaching increased liability to web platforms would do anything to reduce trafficking.
But here's a more important question: why is Congress asking tech experts what would reduce trafficking? Experts with experience working closely with trafficking victims have voiced major concerns that undermining 230 would do more harm than good for trafficking victims.
In its letter on Section 230 [PDF], Freedom Network USA (a national network of frontline anti-trafficking organizations) expresses grave concerns about eroding the protections in Section 230: "Responsible website administrators can, and do, provide important data and information to support criminal investigations. Reforming the CDA to include the threat of civil litigation could deter responsible website administrators from trying to identify and report trafficking."
To quote anti-trafficking advocate (and herself a trafficking victim) Kristen DiAngelo [PDF], "SESTA would do nothing to decrease sex trafficking; in fact, it would have the opposite effect. [...] When trafficking victims are pushed off of online platforms and onto the streets, we become invisible to the outside world as well as to law enforcement, thus putting us in more danger of violence." And in its letter opposing SESTA, the Sex Workers Outreach Project warns of how under SESTA, inconsistent state criminal laws will be used against innocent, marginalized groups.
If Congress wants to know how to fight trafficking, they should ask these experts, not technologists.
8:05 a.m.: Evan Engstrom says that platforms shouldn't be liable if they actually don't know that a piece of online content relates to sex trafficking. We agree. The amendments to the federal criminal statute in SESTA and ASVFOSTA would attach liability to platforms even when they weren't aware that a given piece of content was related to trafficking.
7:58 a.m.: Prof. Mary Leary wrongly states that Section 230 stops victims in civil suits against platforms "at the courthouse door." That's not true: if plaintiffs can plead that a platform directly contributed to illegal third-party content, it can be held liable.
7:54 a.m.: Former Rep. Chris Cox explains that victims of sex trafficking in the recent Massachusetts case did not plead that Backpage had a hand in creating the illegal ads. If they believed that the platform itself was directly contributing to advertisements for trafficking, they certainly should have pled that it was, thus making it liable under current criminal law.
Mr. Cox says, "The purpose of 230 is to protect the innocent and punish the guilty." We agree.
7:48 a.m.Evan Engstrom of Engine says that we would not have the Internet startup community without Section 230. We agree: we're not so much worried about what SESTA will do to Google; we're much more worried about what will happen to the next Google.
As he notes, Internet startups have been central to the work of finding and stopping online sex trafficking. The improvements that web platforms have made over the past 20 years in detecting criminal behavior online would not have happened without the strong protections in Section 230. Without them, the fear of litigation would lead platforms to use a hammer where a scalpel is necessary. When SESTA supporters overstate the effectiveness of automated filters, they ironically misunderstand why Section 230 exists in the first place.
7:36 a.m.: Prof. Jeff Kosseff notes:
In its current form, Section 230 does not provide absolute immunity to online platforms. All federal criminal laws are explicitly exempt from Section 230. And platforms are not immune from civil actions or state criminal prosecutions that arise from content that the platforms created.
He goes on to urge Congress not to pass laws undermining speech protections for all platforms because of the alleged actions of a few.
Prof. Kosseff says that any liability for platforms for sex trafficking must be tied to a standard that requires knowledge of sex trafficking, and not a lower reckless disregard or negligence standard. We believe that the knowledge standard already set in federal criminal law is more than sufficient to prosecute true bad actors.
7:20 a.m.: In his introduction, Rep. Steve Chabot implies that web platforms that "materially contribute" to sex trafficking are protected from criminal prosecution by Section 230. This is simply not true. When a platform itself breaks federal criminal law, there is nothing to stop the Department of Justice from prosecuting them. As Rep. Jackson Lee mentions in her statement, a federal grand jury is currently investigating the controversial classified ads site Backpage, and may indict it under current law.
In 2015, Congress passed the SAVE Act, which added a new crime—"advertising"—to the existing criminal statute on sex trafficking. To our knowledge, no web platform has been prosecuted under the SAVE Act. If Congress believes that platforms that "materially contribute" to trafficking aren't being held accountable, it should be asking the DOJ why.
6:43 a.m.: This morning at 7:00 Pacific time (10:00 Eastern), the House of Representatives Judiciary Committee; Subcommittee on Crime, Terrorism, Homeland Security, and Investigations; will hold a hearing on Section 230 and online sex trafficking. We will be watching the hearing and sharing our thoughts both here and on the EFF Live Twitter account.
We've been closely following two bills in Congress pertaining to sex trafficking, the Stop Enabling Sex Traffickers Act (S. 1693) and the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865). While the authors of these bills say that they will fight sex trafficking, they wouldn't do anything to punish traffickers. What they would do is undermine protections for free speech online that we all rely on.
Online platforms are enabled Section 230. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, social media would not exist in its current form, and neither would the plethora of nonprofit and community-based online groups that serve as crucial outlets for free expression and knowledge sharing.
Sex trafficking is a serious problem, but these bills are not a serious solution. In fact, trafficking experts say that eroding Section 230 [PDF] would do more harm than good [PDF] in the fight against trafficking. In the words of trafficking expert Alexandra Levy:
Section 230 doesn’t cause lawlessness. Rather, it creates a space in which many things—including lawless behavior—come to light. And it’s in that light that multitudes of organizations and people have taken proactive steps to usher victims to safety and apprehend their abusers.
If you care about preserving laws protecting freedom of expression online, please take a moment to urge your members of Congress to reject SESTA and ASVFOSTA.