SESTA's Sponsors Falsely Claim That Fixing SESTA's Worst Problem Harms Hollywood

from the say-what-now? dept

Earlier today, in discussing a long list of possible fixes for SESTA, we noted that the only one that even has a remote chance (i.e., the only fix that actually has the potential of being considered by the Senate) is Senator Wyden's amendment, which is designed to solve the "moderator's dilemma" issue by clarifying that merely using a filter or doing any sort of moderation for the sake of blocking some content does not automatically append liability to the service provider for content not removed. Senator Portman -- the sponsor of the bill -- has insisted (despite the lack of such language in the bill) that this is how SESTA should be interpreted. Specifically, Portman stated that SESTA:

...does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.

Except, that's not what the bill actually says. Which is why the language in the Wyden amendment is so important. It basically adds into the law what Portman pretends is already there.

Thus, you would think that Portman and the other Senators backing SESTA should also support the Wyden amendment. They do not. Senator Richard Blumenthal -- who has spent years attacking the internet, and who has already stated that if SESTA kills small internet businesses he would consider that a good thing -- is opposed to the amendment, and sent out a letter supposedly co-signed by other SESTA supporters:

Senators Blumenthal, McCaskill and the other bipartisan sponsors of SESTA oppose the Wyden amendments. These amendments threaten to derail the bill and they would make it even more difficult than current law to hold websites that sexually traffic minors like Backpage.com accountable….The safe harbor amendment would provide websites like Backpage.com with even stronger legal protections than they enjoy today. It also has the potential to disrupt other areas of the law, such as copyright protections. This “bad Samaritan” amendment is not a clarification or a protection for good actors–it is an additional tool to protect traffickers and illegal conduct online.

Here's the problem with that. Almost everything stated above is 100% factually wrong. And not just a little bit wrong. It's so wrong that it raises serious questions about whether Blumenthal understands some fairly fundamental issues in the bill he's backing. Professor Eric Goldman has a pretty concise explanation of everything that's wrong with the statement, noting that it -- somewhat incredibly -- shows that SESTA's main sponsors don't even understand the very basic aspects of CDA 230, as they insist on changing the law.

There are at least three obvious problems with this email. First, the amendment would indeed protect good actors because it would eliminate the Moderator’s Dilemma. The authors of this email still don’t understand, or have decided to ignore, the Moderator’s Dilemma. Second, the proposed amendment would not help Backpage–at all. The Senate Investigative Committee report highlighted voluminous facts about Backpage’s knowledge, so I can’t see how Backpage’s purported filtering would come up in any SESTA/FOSTA enforcement.

Third, the email indicates that the amendment “has the potential to disrupt other areas of the law, such as copyright protections.” This is where the screen freezes, the record scratches, and the narrator says in a deadpan, “No, it wouldn’t.” Section 230(e)(2) expressly carves out “intellectual property” claims–including copyright–from Section 230’s coverage. Anyone with even a basic understanding of Section 230 knows this. Yet, the sponsors, on the eve of a decisive vote with monumental stakes for Section 230, appear to be demonstrating a fundamental misunderstanding of what Section 230 says and does. That is very, very confidence-rattling.

Worse, the email has it precisely backwards. The amendment would HELP, not DISRUPT, copyright protection efforts. If services stuck in the Moderator’s Dilemma decide to turn off proactive moderation efforts, that will include turning off copyright filtering. In other words, SESTA/FOSTA may have the unwanted consequence of encouraging Internet services to do LESS copyright filtering. (This is just one of many examples of my claim that SESTA/FOSTA may counterproductively increase anti-social content). The amendment would fix that by not holding their copyright filtering efforts against Internet services for sex trafficking or prostitution promotion purposes, i.e., by filtering for copyright, the Internet services won’t fear that a court will ask why their filters missed promotions for sex trafficking or prostitution. So if Congress wants to avoid “disrupting” efforts to combat online copyright infringement, the amendment is essential.

This isn't a matter of differing opinions. This is the main backers of a bill to drastically change CDA 230 insisting that (1) their bill does something it does not and (2) a fix to their bill that would bring it into line with what they claim their bill does... actually does a bunch of things it absolutely does not.

At this point, you have to start wondering what the hell is happening in the Senate, and in particular in Senator Blumenthal's office. He is not just doing a big thing badly -- he is gleefully spouting the exact opposite of basic facts about both the existing law, and the bill he sponsored. I know that politicians aren't exactly known for their honesty, but he seems to be taking this to new levels -- and causing massive harm in the process.

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Filed Under: cda 230, claire mccaskill, copyright, fosta, intermediary liability, moderator's dilemma, richard blumenthal, rob portman, ron wyden, sesta