House Internet Censorship Bill Is Just Like The Senate Bill, Except Worse
from the easy-target-rather-than-the-right-target dept
SESTA and FOSTA Are Cut from the Same Cloth. Both Would Be Disastrous for Online Communities
There are two bills racing through Congress that would undermine your right to free expression online and threaten the online communities that we all rely on. The Stop Enabling Sex Traffickers Act (SESTA, S. 1693) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) might sound noble, but they would do nothing to fight sex traffickers. What they would do is force online web platforms to police their users' activity much more stringently than ever before, silencing a lot of innocent voices in the process.
We've already written extensively about SESTA and the dangers it would pose to online communities, but as the House of Representatives considers moving on FOSTA, it's time to reiterate that all of the major flaws in SESTA are in FOSTA too.
Section 230 Protects Online Communities. Don't Weaken It.
Like SESTA, FOSTA would erode a law referred to as Section 230. Passed in 1996, Section 230 says that online platforms can't be held liable for their users' speech, except in certain circumstances. Without Section 230, it would be extremely risky to host other people's speech online: one lawsuit could destroy your company. Most social media sites wouldn't exist, or they'd look very different from the ones we enjoy today.
Section 230 strikes an important balance for when and how online platforms can be held liable for their users' speech. Contrary to SESTA's supporters' claims, Section 230 does nothing to protect platforms that are directly involved with breaking federal criminal law. If an Internet company is directly contributing to unlawful activity, the Department of Justice can and should prosecute it.
Under FOSTA, a site would be on the hook if a court simply found that someone had used it for sex trafficking purposes. The law would force platforms to become much more restrictive in their moderation policies, which is likely to disproportionately silence marginalized groups.
FOSTA carves an even bigger hole out of Section 230 than SESTA does. It defines the state law exemption to Section 230 more broadly, applying it to "any State criminal statute" related to sex trafficking. State sex trafficking laws are notoriously inconsistent: in Alaska and Massachusetts, for example, statutes define trafficking so broadly that they don't require any indication that someone was forced or coerced into sex work. FOSTA could open the door to litigation far beyond the sex trafficking activities it's intended to target.
Broad Criminal Law Would Hurt Legitimate Communities
Like SESTA, FOSTA expands federal sex trafficking law to sweep in third parties that unknowingly facilitate sex trafficking (like web platforms), but FOSTA defines those third parties even more broadly than SESTA does, criminalizing conduct by "any person or entity and by any means that furthers or in anyway aids or abets" sex trafficking. It even goes a step further by explicitly making it a crime to be a provider of an Internet service that was used for sex trafficking purposes, provided that you acted in "reckless disregard" of the possibility that your service could be used for trafficking (we've written already about the dangers of applying the "reckless disregard" standard to online intermediaries).
Remember, Congress already made it it a federal crime to "advertise" sex trafficking online, via the SAVE Act of 2015. No new law is necessary to prosecute platforms that knowingly facilitate sex trafficking ads. If the Department of Justice has failed to prosecute platforms that violate the SAVE Act, then lawmakers should demand an explanation. In the meantime, Congress shouldn't pass laws threatening every other online community.
Bottom Line: These Bills Go After the Wrong Targets
We've talked a lot about the damage that SESTA and FOSTA would do to speech and communities online. Just as important is what they would not do: fight sex trafficking.
SESTA and FOSTA are perfect examples of Congress choosing an easy target rather than the right target. It's easy to prosecute Internet companies, but Congress must do the serious work of understanding trafficking—its causes, its perpetrators, and the online tools law enforcement can use to fight it—and find better solutions to find and punish traffickers.
Since SESTA and FOSTA were first introduced, many experts in sex trafficking have stepped forward to explain that these bills are the wrong solution—that they would put victims of sex trafficking in much worse predicaments, moving them from the safety of the Internet to a dangerous street—where they are much less likely to get help.
It's not pleasant to confront the dark realities of sex trafficking, but Congress must. Otherwise, it risks passing a bill that would harm the very victims it's trying to help.
Reposted from EFF's Deeplinks blog
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Filed Under: cda 230, congress, fosta, intermediary liability, sesta, sex trafficking
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This will be bad
Thankfully, Section 230 was set up pretty well from the get-go so we didn't have to deal with these nuisance suits. People trying to sue Facebook and Twitter because ISIS used their platforms. People trying to sue because someone said something mean anonymously.... Section 230 protected against all that.
Now we are opening the floodgates to let politically motivated Attorney Generals like Jim Hood going after Google because a Sex Trafficking ad popped up once; and Kamala Harris bludgeoning Facebook because she saw a post propositioning sex...
This will not end here... it will get much much worse... wait until they add 'Stop Enabling Terrorist Attacks' (SETA) and 'Stop Enabling Online Bullying Attacks' (SEOBA)...
Good luck letting anyone put anything online after that; except for maybe a couple of pictures of puppies... everyone loves puppies.....unless those pictures of puppies have steganographic messages about sex trafficking hidden in them! Fine... no puppy pictures either... Thanks for ruining the internet, congress...
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Re: This will be bad
(StopTheUbiquitousPoliticalIdiocyDamnit)
This bill would outlaw stupidity in politics. Anyone caught being stupid and or saying stupid shit will be deported, without their underwear.
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If they are looking for sex criminals
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So if sex traffickers use a Windows Server, would Microsoft be fined? If they used Linux, would Linus Torvalds be on the hook?
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Re: Hey there, "Rapnel" -- or should I call you "SlinkySlim" or "SinkaJaw"
(see https://www.techdirt.com/comments.php?start=860&u=rapnel ),
should I just use the "\r" of 15 Jul 2011 and that you started with?
Congratulation for dubious record of most screen names, far and away.
Perhaps your many screen names are why I thought were heck of a lot more commenters here than are. Actually are only a couple dozen active -- and apparently REAL persons: I admit are many more account names...
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Re: Re: Hey there, "Rapnel" -- or should I call you "SlinkySlim" or "SinkaJaw"
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Re: Re: Hey there, "Rapnel" -- or should I call you "SlinkySlim" or "SinkaJaw"
Call him whatever you want, so long as I can call you “Betty”.
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Re: Re: Re: Re: Hey there, "Rapnel" -- or should I call you "SlinkySlim" or "SinkaJaw"
You can call me Al.
[flute solo]
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They should call it the shakedown coercion and vendetta act.
What you'll be looking at is beavergate-2017 on steroids every day of the week, until everybody is afraid to be critical of the government in any way whatsoever.
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Is this vectored at TOR?
But given some of the insanely subjective decisions that have come out of Federal courts, it isn't a stretch to think that one or two venue-shopped judges won't define that to include "complete ignorance".
All backbones pass illegal traffic. They always have. We are aware of this. So what is the difference between "awareness" and "reckless disregard"? I'm guessing it is: "didn't you do something to stop it?".
Which is to say that this law will support networks that violate civil rights, and punish those that are engineered specifically to eliminate the criminal wiretaps that are ubiquitous in consumer networking.
Which is to say this law seems to point directly at TOR admins and U.S. based VPN services. If you run a TOR node in the U.S. you get locked up? If you run a VPN service in the U.S. you get locked up? If you run a torrent or usenet server you get locked up? If you run a freenet client, you get locked up? If you do anything that helps other Americans assert their 4th amendment rights, you get locked up?
Is that what we're talking about here? That is sure what it looks like.
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Prostitution and sex trafficking
The law makes no exceptions for relationship, marital status or age. So a father holding his infant daughter on his lap on the bus is a pedophile and his daughter is an underage prostitute, under the law. As far as I know, nobody has enforced it in almost a century, but it's still law.
Think of the implications for the bus company if that exact scenario happens with FOSTA enacted.
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It's pointless to list all of the criminal offenses on the book against prostitution when online sites and (a) exempt because of the broad nature of section 230, and (b) generally not getting enough information about users to figure out who they are, and (c) generally they object to any move that would require them to know their customers / writers / contributors on their sites.
Section 230 alone creates a situation where a website can do what a print paper could not do. It creates something that a radio or TV station could not do, which is allow others to use their media outlet to promote prostitution without any responsibility.
Like it or not, section 230 is overbroad and has allowed a small but significant number of sites to profit from the sex trade, where no other form of media can legally do the same. It was only a matter of time before someone started to look for ways to address this legal black hole.
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Yes section 230 is overbroad, but that was by design to prevent a lot of the skullduggary that people have indeed tried.
I also don't believe you can compare newspapers to online blogs as they are two completly different animals, one has editorial control over the content that users send in, the amount that comes in is not that vast compared to online communities such as FaceBook who every 60 seconds has 510,000 comments posted, 293,000 statuses updated, and 136,000 photos uploaded (Source The Social Skinny, accurate up to November 2017)
So your argument of treating newpapers and online sites the same is complete and utter nonsence, unless you want every online blog to have press protections like the newspaper has also? two different industries, two different sets of regulations.
N/B News papers can make use of section 230 on their websites themselves but that is more an online service than a broadsheet or newspaper.
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You're assuming that the a court is going to be able to distinguish between the nuances of the various service types. To date what we've seen is a complete disregard for the actual nature of digital communications in prosecutions and litigation.
And since we know that the people that end up in court are the ones that are easy to catch and prosecute, and not the ones who are the most dangerous, we can infer that this fishing net is going to catch nothing but the anchors and rodes of legitimate business's. Here's how it is going to go:
State: "your a criminal"
Tor Admin: "No, I have NO idea what traffic flows through this switch. Thats the fucking point."
State: "So you admit that you willfully pass traffic that might be illegal!"
Tor Admin: "I pass traffic that might be your mothers porn channel, and frankly I don't fucking care. I believe in the 4th amendment."
State: "You see ladies and genetlmen! He admits that he is passing criminal content!".
Guy defending the 4th amendment goes to jail. FBI tally's its arrest figures, and hands out a promotion. No actual criminals are even remotely phased by the event.
They never ask how anything works. They just declare that something is a crime, even if that something has no basis in actual implementation. As in the case of "reckless disregard".
"Reckless disregard" is a free license to lock people up of a particular professional class, until such time as a case makes its way to SCOTUS to determine what that term actually means.
What it says, is not what they think it says. Their rhetorical framing of the issue, is based on a legal concept that has no parallel in practical implementation. All they're really saying here is: "do something", and leaving it up to the FBI to determine what that "something" is.
And we know from past experience what that "something" is going to be. They are going to use their free pass to criminalize cryptographic frameworks.
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Same for me. I don't know Mike. He doesn't know me. I could post "For a good time, call 17 year old Betty at ###-###-####" and blam... they are now a co-conspirator in an underage sex ring... Kamala Harris will be busting down their doors and Mike will be brought up on pimping charges.
Prosecute the people breaking the law... not all of the 3rd parties that have done nothing. Don't prosecute Ford just because Betty was caught in the back seat. Don't prosecute Victoria Secret just because that is where she bought her bra. Don't prosecute AT&T just because they provided a cell phone that she used to answer the message. Don't prosecute TechDirt just because some random asshole posted Betty's number there.
IT MAKES NO DAMN SENSE....
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While both of the laws have a certain vagueness about them, they both are facing the same problem: Some websites are profiting from prostitution and sex trafficking, be it minors or not. They are trying to address that issue.
By making it worse? Or are you going to say that the actual experts on the issue who have spoken up are just clueless and have no idea what they're talking about when they say that the bills stand to do plenty of damage while not actually helping the victims?
(a) exempt because of the broad nature of section 230,
Not if they are actually involved, which strips 230 protections.
(b) generally not getting enough information about users to figure out who they are, and (c)
Yes, anonymous speech is anonymous, go figure.
I do wonder, would you be willing to post here or elsewhere if you were required to give TD your actual, personal information? Name, contact info, whatever's needed so that should the need arise they know exactly who you are and can hand that info over to whoever's asking?
(c) generally they object to any move that would require them to know their customers / writers / contributors on their sites.
'Hey, you know all those massive numbers of anonymous users you've got? Yeah, we want you to get rid of that 'anonymous' half and start requiring them to provide personal details if they want to use your site/platform. Should be a piece of cake to manage, and I don't imagine you'll lose too many people.'
You got me there, I can't imagine why they aren't just jumping on that...
Section 230 alone creates a situation where a website can do what a print paper could not do. It creates something that a radio or TV station could not do, which is allow others to use their media outlet to promote prostitution without any responsibility.
'... And don't even get me started on those pedestrians, who do they think they are blatantly ignoring the rules cars and trucks are required to follow? Don't they know that as both walking and driving are personal forms of transportation the rules are the same?'
And yet again you conflate an open platform and closed publishers, bemoaning the fact that they are under different sets of rules for reasons which apparently continue to completely baffle you.
Like it or not, section 230 is overbroad and has allowed a small but significant number of sites to profit from the sex trade,
And if you(or more accurately a prosecutor/DA) could demonstrate this in court, you/they would have a trivial time securing a conviction because if a site is actually involved in what you/they say they are then the law doesn't protect them from prosecution. What it does protect them from is people coming along and trying to blame them for the actions of their users, whether that be by claiming that they 'enable terrorists' or 'enable sex trafficking'.
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