Wall Street Journal Explains Why SESTA Is A Terrible Idea And Is Unnecessary

from the didn't-see-that-coming dept

Here's a bit of a surprise. The Wall Street Journal's Editorial board has come out vehemently against SESTA. The reason this is surprising is that much of the push for SESTA has been a fairly obvious attack on internet companies, especially Google, by trying to undermine CDA 230. And the Wall Street Journal has spent years attacking Google at every opportunity.

But, this time, the editorial gets the story right -- highlighting that the effort is clearly being driven by anti-Google animus, even though it will create all sorts of other problems (problems that Google can mostly survive easily). However, the most important part of the editorial details why SESTA is not actually needed. Throughout the process, the backers of the bill always point to Backpage.com as the reason the bill is necessary. As we pointed out, when the bill was first released, nearly every quote from Senators backing it mentioned how it was necessary to take down Backpage.

But what none of them want to talk about is that we don't need this law to take down Backpage. As the WSJ report notes, Backpage is currently in court in Massachusetts where it seems likely that a judge will say that it's not protected by CDA 230, because of recent evidence showing that it was a more active participant in creating advertisements involving trafficking. Earlier ruling saying that Backpage was protected by CDA 230 did not have the evidence revealed later that Backpage actually was an active participant:

Yet neither the California nor federal judge was presented with the evidence in the Senate report that Backpage had edited ads to elude law enforcement. And in light of new evidence, a federal judge in Boston is considering allowing another case against Backpage to proceed.

At the very least, you have to wonder why Congress can't wait to see what happens in Boston.

Separately, it's widely been reported that the DOJ has begun a grand jury investigation into Backpage. And, despite what people will tell you, nothing in Section 230 prevents the Justice Department from going after federal crimes (including sex trafficking). The WSJ points this out as well:

Justice last year initiated a grand jury investigation into Backpage’s sex-trafficking, and courts may correctly decide the case in due course.

And that leaves out two other points that show that SESTA is not needed to take down Backpage. First, two years ago, Congress passed another law, the SAVE Act, which was also clearly targeted at Backpage, making it illegal to advertise sex trafficking. And, for reasons no one has explained, that law has never actually been used. Throughout the entire SESTA process, politicians have acted as if the SAVE Act never even happened. No one has discussed why we need another law on top of that one, or why the SAVE Act has not been used, even though it targets the same issue in a more targeted fashion.

And the biggest reason of all that we don't need SESTA to take on Backpage: Backpage has already shut down its adult ads section, due to the mounting pressure from politicians, lawsuits and law enforcement. The only thing SESTA adds to Backpage is even more ways to pile on after the fact. It's hard to see how that is necessary at all.

Either way, as the WSJ Editorial points out, SESTA seems totally unnecessary to deal with the problem that everyone is claiming it's meant to help... but it would cause lots and lots of other problems:

Most website operators are aware that people use their platforms for nefarious purposes, but ferreting out criminal activity isn’t always easy. While algorithms can help, human judgment is often necessary. Google plans to hire 10,000 employees to review YouTube videos for inappropriate content. Revising Section 230 for sex-trafficking could open up a Pandora’s box. Small websites might create overly restrictive screens that filter out non-objectionable content such as ads to help sex-trafficking victims. This could also make it harder to ask other countries to provide internet companies legal immunity for user content.

The WSJ editorial actually underplays the so-called "moderator's dilemma" created by SESTA. As Eric Goldman has explained multiple times, under the wording of SESTA, most websites are encouraged to take one of two extreme positions, neither of which are helpful. One is that if they moderate, they will become overly cautious, quick to take down anything that might put them at risk, or for which they received a notice. So that could include (as the editorial notes) content designed to help sex-trafficking victims, or it might just be anything that mentions certain keywords. Or maybe it'll be anything that someone flags as "sex-trafficking content" just because they want it gone (as we see with tons and tons of DMCA notices).

The other option in the moderator's dilemma is not moderate at all. Since SESTA has a "knowledge" standard, the best way to avoid liability is not to have any knowledge of what people are doing -- and the best way to do that is not to moderate at all. What's quite incredible to me is that the backers and supporters of SESTA refuse to acknowledge that as CDA 230 is currently written it encourages moderation, and SESTA removes that encouragement. In other words, in an effort to get websites to stop allowing sex trafficking, they're actually encouraging more sites to look the other way deliberately.

One more point that the WSJ editorial board gets right: this is going to lead to a ton of lawsuits. And almost all of those will be misdirected: suing the company operating a website for actions of its users, rather than suing the users. Given that even the anti-internet Wall Street Journal understands the many problems of the bill, why is it that so many in Congress refuse to deal with it?

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Filed Under: cda 230, fosta, sesta, sex trafficking, unintended consequences, wsj, wsj editorial board