This sex trafficking law could ruin the internet as we know it


On Monday, Rep. Ann Wagner introduced a bill to fight child sexual exploitation and sex trafficking. In an accompanying press release, the congresswoman spoke of modern slavery, the retailers of Americas children, and called for the need toprovide a voice for the most vulnerable in our society.Wagner is a Republican from Missouri who voted for Donald Trump and considers George W. Bushs memoir to beher favorite book. But not too surprisingly, the legislationalready has bipartisan support what Democratcould object to such an attempt to protectchildren?

Hidden behind the moving rhetoric aboutchild sexual exploitation, though, is the fact thatWagners bill could fundamentally change the internet as we know it. Legalexpertssay it would dramatically chill free speech onthe weband expose websitesto business-endinglegal battles. The worldsmost popular social media platforms fromFacebooktoInstagram to Snapchat might notlook anything like they do today.

This is because Wagners legislation which comes with the hard-to-disagree-with titleofAllow States and Victims to Fight Online Sex Trafficking Act of 2017 amends Section 230 of the Communications Decency Act. This small block of textis whattheElectronic Frontier Foundationhas calledone of the most valuable tools for protecting freedom of expression and innovation on the Internet. Itprotects websites from legal responsibility for user-generated content meaning, it holds that Facebook isnt liable for status updates, Twitter isnt answerablefortweets, Snapchat isnt on the hook for snaps, and so on. It also protects news sites with commenting sections, like, from being prosecuted for things their readers say.It is the infrastructure that enables all of the websites we love the most to exist, saidEric Goldman, a law professor at Santa Clara University.

Similarly,Emma Llans, the director ofCenter for Democracy & TechnologysFree Expression Project,explains, One of the primary reasons that we enjoy the broad variety of sites that are able to host user-generated content online today and why U.S. companies are really leaders in the field around the world is because those sites can depend on the strong protections of Section 230. Starting to whittle those away or create exceptions really does undermine the whole foundation of that system.

Wagners bill removes the protections that websites currently enjoy when it comes to one areainparticular: child sex trafficking. It amends the federal definition of child sex trafficking and allows for prosecution of websites related to the facilitation ofthat crime, with potential fines or imprisonmentfor up to 20 years. The legislation also allows for state prosecutions of websites for child sexual exploitation and sex trafficking. And, finally, Wagners text would pave the way for victims of sex trafficking to seek civil remediesfrom such websites.

Presumably, the bill is meant to target online classified sites like Backpage whose CEO and co-founderswereclearedof pimping charges relating toallegeduser-generatedsex trafficking ads, thanks to protection from Section 230but it would apply to any site that hosts third-party content.That meanswebsites like Twitter or Facebook could be held criminally or civilly responsible forcontent posted by users.

If the bill became law, websites wouldhave to weighthe risks of ending up in court. Many site operators wouldtake a heavy hand with moderating user-generated content, warnseveral legal experts. Others might simply take the risk of continuing as usual, but potentiallyface ruinous legal fees and fines, or jail time.

That is especially true when it comes to the way Wagners bill allows for state prosecutions of websites. As Llansopoints out, there will be some states that define things like child sexual exploitation very narrowly, but others will not. A website could investigate the state-by-state nuances of such laws and moderate user content accordingly, but Llansosays, Honestly, the easier thing would be to take down any speech that has even a whiff of child sexual exploitation. And what does that mean for somebodys art work interpreting NabokovsLolita?

Llanso argues that even introducing theseemingly smallest liabilities for websites,when multiplied at the scale that theyre working, will turn into an incredibly strong incentive to take down speech. She adds, Under a bill like this which is framed as targeting the exploitation of children and sex trafficking, you could easily imagine the effect of that expanding to cover sexually oriented material in general, she said. Its possible that websites, anxiousabout potential prosecutions, would apply that to totally normal pornography or completely lawful businesses, like exotic dancing or massage.

Goldman agrees.Pay attention here, he warned. This is not just about helping the kids, this is about all the ways in which the plaintiffs, the law enforcement, the state attorneys general could interpret regulations about the sexual exploitation of children or the sex trafficking of children to apply to things you wouldnt think would have anything to do with them. He added,Forget what the laws say today. Assume that youre going to have parochial state legislators fueled by their state attorneys general saying, How can I crack down on the internet? And this opens up the door for them to tell the sites we love the most ways they might need to run differently.

There is also significant ambiguity in the bills amendment of federal child sex trafficking law to include websites that exercisereckless disregard in hosting criminal content.Whats the risk that we might be sweeping in a lot of people who thought they were innocent? he asked. If theres ads on Craigslist or Backpage, or pick your favorite online classified ad service that advertise services that would violate this crime, when does that become reckless disregard? He adds, I have no idea what that could mean.

Of course, manywebsites dont have the infrastructure for, orwont be able toafford the cost of, such a wide scale venture in moderation. AsDavid Greene, a senior staff attorney at the Electronic Frontier Foundation,points out, Platforms, intermediaries that have tons of moneygenerally can deal with these situations, but smaller ones, publications that dont have the resources to do extensive vetting of all the user generated content that gets posted to them, will not, he said. They either put themselves at legal risk, or they put an end to user-generated content.

There are implications here not just for how online businesses are run, but whether they ever launch in the first place.It discourages entrepreneurship, because investors are not only risking their money but also their lives, said Goldman, pointing to the potential for up to 20 years behind bars.

Goldman believes the bill has a real chance in todays political climate. In a more than 2,000-word blog post on the bill which he openedwith the Drudge siren, just to communicate the gravity of the situation he pointed out all of the things it has going for it, from the Republican control of Congress to its positioning as a childprotection measure, putting opponents in a potentially awkward position. Its possible that major Silicon Valley players will come out to oppose the legislation, but he sees it as equally possible that they will stay on the sidelines, much as they have during the legal attackson Backpage.Either way, he sayswe can expect a major battle for Section 230s soul.

This story originally appeared on Vocativ and has been republished with permission.

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