Wikipedia Warns That SESTA Could Destroy Wikipedia

from the be-careful-what-you-aim-for dept

So much of the debate about SESTA has focused on three companies: Backpage, Facebook and Google. The focus on Backpage was because it's the go to example for why some claim this bill is needed (even though Congress passed another law two years ago to target Backpage, and that law has never been used, and even though there's already a federal grand jury investigating Backpage and there's nothing that stops the DOJ from going after Backpage under federal law). The focus on Facebook and Google is a bit more nebulous, but could be summed up as: "those companies are too big and should do more to stop bad stuff happening online." There's a pretty easy path from "Section 230 of the Communications Decency Act says internet platforms aren't responsible for what their users do" to "we need them to be more responsible" to "let's amend CDA 230." This line of thinking is problematic for any number of reasons that we've already discussed, so I won't go over them again now.

But, as we've tried to explain, SESTA doesn't just impact Backpage, Facebook and Google. Indeed, Facebook and Google are uniquely positioned to handle the burdens (bogus takedowns, trollish threats, baseless litigation) enabled by SESTA. We've already shown how SESTA leaves small sites like our own at tremendous risk (and we're still waiting for anyone -- but especially the bill's authors -- to explain how we avoid that risk), but lots and lots of other sites will be impacted as well.

Take Wikipedia for example. The Wikimedia Foundation has published an excellent article describing how Wikipedia only exists because of CDA 230 and how it creates the space for a site driven entirely by its userbase to exist. More importantly, the article, by Wikimedia's Leighanna Mixter, details three ways in which SESTA puts Wikipedia at serious risk by upsetting the careful balance created by CDA 230. And here's where it's important to remind people that CDA 230 actually does two things. Many of its largest critics, incorrectly, think that all CDA 230 does is give websites a free pass to ignore everything that happens on their platform. But it also encourages sites to moderate activity that they don't want on their platform by noting that they don't lose their immunity in doing some forms of moderation. It's this part of CDA 230 that gets less attention, but is potentially more important. And yet SESTA rips that apart. That leads to Wikimedia's first concern:

1. Website operators need freedom to review content without legal risks The fundamental goal of Section 230 is to keep the internet free and safe by encouraging operators to host free expression and remove problematic content without the disincentive of possible lawsuits. SESTA introduces a vague standard for website operators that expands liability for “knowing” support of certain criminal activity. This will encourage websites to avoid gaining knowledge about content (to avoid liability) instead of actively engaging in content moderation.

The post then drills down (as we have) to explain why the knowledge standard in SESTA (even as updated) leaves Wikipedia in serious danger. Because Wikipedia is maintained by thousands upon thousands of volunteers -- what will constitute "knowledge" of illegal behavior. If one of the volunteers comes across links to sex trafficking and fails to remove them, does that mean all of Wikipedia has "knowledge"? Do all editors of Wikipedia now need to be deputized to respond to sex trafficking issues? Does Wikipedia need to stop allowing volunteer editing (its entire basis of existing) and switch only to paid editors?

A second problem with SESTA is how it opens up any web platform to a whole variety of state laws that smaller sites are unlikely to be able to follow and understand (and which can change over time).

SESTA would amend Section 230 to allow, for the first time, civil and criminal liability for websites under state law as well as federal law in cases where the federal sex trafficking law has also been broken. This improves upon an earlier version of the bill, which would have allowed for much broader liability under state law. Website operators should not have to monitor and attempt to comply with differing laws in all 50 states. Doing so would require substantial time and resources just to stay aware of new laws and ensure compliance, which would be particularly difficult for a small company or nonprofit like the Wikimedia Foundation. It also would put operators in an impossible bind if two states passed laws with contradictory requirements.

Finally, perhaps the biggest concern is how SESTA opens up smaller sites to what's likely to be myriad new lawsuits, in part because people will be testing the contours of the new law, but also because the standards in the law are so vague. Again, Facebook and Google can handle themselves when faced with lawsuits. Smaller sites? Not so much. As we expressed in our earlier post, small sites like our own and other individually owned blogs will have tremendous difficulty dealing with frivolous lawsuits under the law, but even Wikipedia notes that this would be very damaging.

When plaintiffs target online speech, they often go after the website, not the speaker. It can be difficult to track down individual users, and suing a website may appear to be more lucrative. For two decades, Section 230 has protected websites with a shield from civil liability for user-created content. Critically, Section 230 does not prevent websites from being held responsible for their own actions — websites that are directly involved in illegal activities can already be prosecuted by the Department of Justice. However, SESTA would open up websites to more liability under federal and state law, likely resulting in increased litigation. Some of these lawsuits will be legitimate responses to improper conduct by websites; others may simply target the website over the speaker as an easier way to attack online speech. Even if these lawsuits are meritless, getting them dismissed demands significant time and resources. Small internet companies, startups, and nonprofit websites like the Wikimedia projects lack the resources to defend against a flood of lawsuits. Websites shouldn’t be sued into the ground, or afraid to even launch, simply because of holes in Section 230’s protections. Any amendments to Section 230 must take into account their effects not just on large, well-funded tech companies, but on startups and nonprofit organizations as well.

For many people supporting SESTA, the discussion seems to start and end with "sex trafficking is bad, this bill says it targets sex trafficking and therefore it's good" (and maybe with a touch of "if it hurts big internet companies, that's fine, they deserve it.") But, the impact of SESTA goes way beyond that (not to mention it doesn't actually do anything to stop sex trafficking and could make the problem worse). It's good to see Wikimedia speak up -- and hopefully someone in Congress will finally start to understand why SESTA is such a bad bill.

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Filed Under: cda 230, intermediary liability, knowledge, lawsuits, section 230, sesta, user generated content, wikipedia

Companies: wikimedia