WASHINGTON D.C. —­­ Today, the Senate passed the Stop Enabling Sex Trafficking Act (SESTA) by a 97-2 vote, despite repeated warnings from the Department of Justice, House Judiciary Committee, and numerous prosecutors that the bill would make it more, not less, difficult to convict sex traffickers — and a DOJ letter saying the bill’s retroactive application violates the ex post facto clause.

The Senate rejected, 21-78, an amendment proposed by Sen. Ron Wyden (D-OR) that would have appropriated $20 million to fund criminal prosecution under the new law of sites that facilitate sex trafficking. After that amendment failed, Wyden withdrew a second amendment, which would have addressed addressed the bill’s most glaring flaw: potentially discouraging responsible websites from monitoring user content to protect users against sex trafficking, among other forms of abuse.

“This is a new low for Congress,” lamented Berin Szóka, President of TechFreedom. “Lawmakers will pat themselves on the back for combating sex trafficking, even after the Department of Justice and the House Judiciary Committee told them that SESTA wouldn’t actually help prosecutors, after the Department of Justice warned that the combined bill would be unconstitutional, and the Wall Street Journal warned that the bill ‘could open the web to a lawsuit bonanza.’”

“Section 230 has never actually blocked federal criminal prosecutions,” continued Szóka, “but SESTA’s sponsors decried the lack of enforcement and insisted Congress had to make it easier for states to bring their own prosecutions. If that were really the reason for passing this law, lawmakers would have put their money — the taxpayers’ money — where their mouths were and authorized an appropriation for enforcement. But the push for SESTA has always been first about political theatre and second about opening the door to broader liability for web platforms. Sen. Mark Warner made that very clear in his remarks at SXSW.”

“Good intentions won’t stop SESTA from harming those it was meant to protect,” said Szóka. “Congress enacted Section 230 to avoid discouraging websites from self-policing. The bill’s sponsors claim to be maintaining that ‘Good Samaritan’ immunity but they aren’t. Without Sen. Wyden’s amendment, courts may conclude that Section 230 no longer protects monitoring for harmful content. That fear will discourage responsible websites from monitoring user content — not just regarding sex trafficking, but any potential abuse, lest they inadvertently acquire what a court later deems to be ‘knowledge’ of sex trafficking, thus exposing them to prosecution under SESTA.”

“The process that led to this point was appalling,” concluded Szóka. “Republican leadership ignored the concerns of actual experts in criminal law — who also happened to be Republicans. The House Judiciary Committee’s alternative to SESTA was simply treated as something to tack onto SESTA, a fundamentally flawed bill that was never reviewed by the Judiciary Committee in either chamber. The last-minute Frankenstein merger of the two bills created a serious constitutional problem: contrary to the Republican Policy Committee’s glib assessment, the Congressional Research service concluded that retroactively applying FOSTA may be unconstitutional. In this process, the only lawmakers who distinguished themselves in their commitment to getting this right were Chairman Goodlatte, Sen. Wyden and Sen. Paul. It is only a matter of time before Congress will have to revisit this bill, as its problems become apparent, as Sen. Wyden warned.”

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We can be reached for comment at media@techfreedom.org. See more of our work on SESTA and FOSTA, including:

Our post on why the bill likely does violate the ex post facto amendment

Our statement on Sen. Wyden’s amendments to fix SESTA’s largest flaws

Our joint statement with Engine on the House vote on FOSTA

Our letter to Reps. Goodlatte and Wagner on the FOSTA markup

Our primer on anti-sex trafficking bills

Our statement on SESTA

Tech Policy Podcast #189: Fighting Online Sex Trafficking

About TechFreedom:

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.