Why Corporate Attorneys Are Against The 'Stop Enabling Sex Traffickers Act'

The ACLU doesn't like the proposed law either.

(Photo by Athit Perawongmetha/Getty Images For The Body Shop)

Look, everybody is against sex trafficking. Okay? You’re not going to find anybody who (publicly) says, “Sex trafficking, that’s just the market providing, baby.” All of us normal people, on both sides of the aisle, are against sex trafficking.

BUT… you can generate some real disagreement on the way to combat sex trafficking. Congress is contemplating a bipartisan law called the “Stop Enabling Sex Traffickers Act,” and while the bold title certainly seems like something everybody should be in favor of, the details of the plan have lawyers nervous. Especially lawyers who work for large companies.

SESTA contemplates making it harder for sex traffickers by bringing criminal penalties against websites that facilitate the trade. The problem is, you can’t exactly go to Amazon and select “human sex slaves” from the drop down menu. The dark websites where this stuff goes on often just allow users to post the disturbing information.

Therefore, SESTA would amend Section 230 of the Communications Decency Act to provide civil or criminal penalties for those who knowingly facilitate sex trafficking.

If you work for any company that generates business or revenue through user generated content, Section 230 is YOUR LIFE. Section 230 protects you from liability just because your users act a fool. Without it, a lot of the business of the internet would change drastically. That’s why so many disparate stakeholders are aligned against this sex trafficking bill:

* The ACLU and the Electronic Freedom Foundation are worried that piercing Section 230 would lead to censorship of content by companies terrified of risking liability.
* In-house counsel for small companies are worried that without Section 230, having any sort of user generated content or business would be too dangerous to support. You’d see those companies completely closing down “comments” or “reviews” sections entirely.
* General counsel for large companies are worried that they’d be easy marks as the “deep pockets” in civil litigation based on random users that they can’t hope to fully monitor and control without major investment.

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On top of all that, you have the issue that SESTA and the weakening of Section 230 could make the internet even MORE toxic. By holding people responsible for “knowingly” facilitating bad behavior, you create a perverse disincentive to do any kind of user content moderation. From Corporate Counsel:

“SESTA is a horrible and counterproductive bill,” said Josh King, chief legal officer of online legal marketplace Avvo Inc. “It’s the equivalent of making Ford and Toyota liable for bank robberies committed using getaway cars.”

King explained that making websites liable for, as indicated in the legislation’s text, “knowledge” or “facilitation” of crimes creates a “powerful disincentive” to moderate user content. “This risk of liability—including criminal liability, no less—will make it much harder for smaller companies and startups to do anything related to user-generated content,” he said.

There’s got to be a way to stop enabling sex trafficking without also having to stop enabling user comments. I don’t think this particular bill has struck the right balance.

In-House Counsel Hold Differing Views on Sex-Trafficking Bill [Corporate Counsel]


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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.