Senator Portman Promises To Pass Bills To Harm Tech Companies If They Won't Support SESTA

from the this-is-how-you-legislate? dept

Senator Rob Portman, one of the authors of a terrible piece of legislation in SESTA, has gone on the offensive in trying to get the bill passed. He gave a rousing speech on the Senate floor, in which he (1) misrepresented his own bill, (2) misrepresented CDA 230, and (3) threatened to pass even worse legislation if more tech companies don't support SESTA.

I may not be an expert on how to legislate... but this does not seem like a good way to legislate.

Let's start with the most incredible part: the threat to pass even worse legislation if the tech industry can't support SESTA more broadly (and, remember, many of the biggest tech companies already support the bill). And, really, the main thing blocking the bill at this point is the fact that the House decided to go in a different direction with the bill, recognizing the myriad problems with SESTA. But, to Portman, it's all tech's fault, and thus this bizarre nonsensical threat:

If you don’t start cracking down on this obvious crime against humanity, which is what I believe trafficking is, I think you’re going to see much, much broader legislation to deal with the internet.

But, of course, all of the big tech companies ALREADY do "crackdown" on sex trafficking, whenever they're aware of it happening via their platforms. Notice that Portman doesn't actually name any of the tech firms as facilitating this -- he just insists they do. The only company he names, naturally, is Backpage. But he fails to mention that Backpage shut down its adult ads section due to lots of political pressure, and that the company is not immune from lawsuits for content it actually creates, and that the company is not immune from the DOJ filing a federal lawsuit, and that there's a still ongoing grand jury investigation into Backpage. In short -- existing law seems to be working just fine.

So why is Portman saying tech companies need to crack down on sex trafficking or he'll help pass an even worse law? It makes no sense, and is no way to competently legislate. It's a way to vindictively legislate in a manner that will have disastrous consequences for the internet, innovation and for free speech -- including the free speech of those who are actually working to stop sex trafficking, or who are victims who need help. SESTA makes the problem worse. Blaming intermediaries doesn't help anyone stop sex trafficking. It doesn't provide any new tools for law enforcement to go after sex traffickers. It does create incentives for tech platforms to not look to clean up their sites -- the exact opposite of what Portman is talking about above -- because it includes a "knowledge" standard. And what's the best way to avoid having knowledge? By NOT LOOKING.

It's a bad bill that will make the problem of sex trafficking worse, not better.

The rest of Portman's talk is filled with other misleading or simply wrong statements.

Here’s the tragic part of this. Not only are more and more lives being ruined, more and more heartbreaking stories, but it’s because of a federal law that provides immunity to these websites. So it comes right back here, right to these desks, right to this Congress, right to us as legislators to fix this problem—not try to smooth it over, but to actually fix the problem, which is that some of these online trafficking sites are immune from prosecution because of a federal law. It was a well-intended law. It was written 21 years ago—the Communications Decency Act.

No. It's because horrible human beings are engaged in sex trafficking, and the focus should be on tracking them down and arresting them. SESTA doesn't help with that, and in fact makes it more difficult. Also, more importantly, the immunity provided to websites by CDA 230 is limited. It doesn't apply to federal crimes (remember that federal grand jury mentioned above?). It doesn't apply to content created by the website. It doesn't apply to the people actually creating the content (i.e., the sex traffickers themselves). Why doesn't Portman admit to any of this? Because it destroys the rationale for the bill.

Ironically it was put in place, in part, to make it a crime to send pornography to kids online, but it’s been twisted and used by these trafficking sites to provide them the ability to say ‘you can’t touch us. You can’t go after us.’

Uh, Senator Portman is leaving out a key piece of all this: which is that while it's true that the CDA was put in place to make it a crime to send pornography online, that whole part of the law was thrown out as unconstitutional and a First Amendment violation. It's not that the law was "twisted." It's just that the part he's talking about was BLATANTLY A VIOLATION OF THE CONSTITUTION that Senator Portman has sworn to uphold. The part that remained of the CDA -- Section 230 -- is the part that actually encourages sites to filter, moderate or remove content by limiting liability.

SESTA changes that equation and actually removes much of the incentive to moderate the content. It creates incentives for the companies not to even look.

Part of what the law says in trying to promote the internet is that if you post somebody else’s material on your site, you’re not liable.

This wasn't to "promote the internet," it was to correctly apply basic principles of liability. You don't blame the tool. You blame the user. If a platform hosts content, you blame who created the content. Also, Portman is misprepresenting CDA 230 in the sentence above. While it's true that it does protect platforms that "post somebody's else's material," that's not the key part of it. That implies that CDA 230 is designed to protect the deliberate action of "posting somebody else's material." But the law is even more about content posted by users. In most cases, it is not the site "posting somebody else's material," it's users posting their own material. And NOTHING in the law says that those users can't be prosecuted if the material violates the law. It just says you don't blame the tool, who is the service provider hosting the material.

All we’re saying is if you know that this involves trafficking, and Senator Blumenthal talked about his experience as a prosecutor, I mean this is a high bar—the knowing standard, then you can’t get away with this.

Except the standard, as written, is not actually that high. It was improved from its even worse initial draft, but is still quite broad, and would leave tons of sites completely at risk of frivolous lawsuits.

By the way, the other side of the argument is by the tech community, some of whom support this legislation, some of whom do not. But for the people in technology who are concerned about this, I just have to tell you, I don’t get it. This is very narrowly crafted to this issue. We’re not trying to affect the freedom of the internet, just the opposite.

IT IS NOT NARROWLY CRAFTED. That's what people keep trying to explain to Portman. He can repeat "it's narrowly crafted" over and over again, and people who actually have experience with attacks on internet platforms know that, as written, it will lead to a lot of frivolous litigation and fishing expeditions -- and widespread censorship to avoid liability, along with LESS activity by platforms to moderate the content. THAT is the concern. No one who is fighting SESTA is arguing that we shouldn't go after those responsible for sex trafficking. We're explaining how this bill DOES NOT DO THAT and not only will very likely MAKE THE PROBLEM WORSE, but it will also have massive collateral damage -- including damage that will make it harder to stop sex trafficking.

And for those in the tech community who continue to oppose this legislation, I ask you to look into your hearts and think about the impact this is having on families all across the country.

Yes. That's why Portman can't name a SINGLE site other than Backpage that he claims is responsible here (and he never mentions that Backpage stopped adult ads). Because these sites do care about this issue and they don't allow or encourage sex trafficking on their platforms. So why is he asking them to "do more" when the only things in his bill will encourage these sites to "do less"? And why is he threatening to pass even worse legislation?

Is this really how Senator Portman legislates? By misrepresenting facts? By misrepresenting existing law? By misrepresenting his own bill? By misrepresenting what companies currently do? And then by threatening to pass even worse legislation if companies don't do the thing they've always done already?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cda 230, intermediary liability, rob portman, sesta, sex trafficking