What if Google, Facebook, Twitter and others were legally responsible for policing your communications and content? These companies have enabled the average person to do something that was once very difficult for those with limited resources — engage in public discourse and contribute to a global marketplace of ideas. Now these companies could be required by law to monitor and police their networks. If Congress passes SENSA, the Stop Enabling Sex Traffickers Act (S. 1693), or the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), online providers will be forced to monitor and control your content.
Just to be clear, we do not agree with the promotion of sex trafficking ads, child pornography and similar content online. There is a judicial process for the removal of this content, as there should be. However, we do not believe that online providers should be held liable for policing this content. That is the job of law enforcement. Additionally, the language of these bills could easily open the door to policing all types of content.
Modifying Section 230
These bills would modify Section 230 of the Communications Decency Act (CDA). The CDA was passed back in 1996 and grants immunity to service providers. Online services providers aren’t aware of all the messages contained in all the communications and files that pass through their networks, and to vigilantly monitor all the content passing through their servers or networks would be a violation of privacy. Section 230 currently states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, providers aren’t liable for content published or republished by users.
According to the Electronic Frontier Foundation (EFF), “Tucked inside the CDA of 1996 is one of the most valuable tools for protecting freedom of expression and innovation on the Internet.”
Vague Language Threatens First Amendment Rights
H.R. 1865 contains worrisomely vague language that should set off alarm bells for anyone who cares about First Amendment rights. The bill states, “Whoever…publishes information provided by an information content provider, with reckless disregard that the information… is in furtherance of an offense [sex trafficking].” What is considered reckless disregard and how could it be proven? What constitutes the furtherance of sex trafficking?
The bill also states “Nothing in paragraph shall be construed to require the Federal Government in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider.” In other words, the online service provider would be held liable, regardless of their intentions.
What If Conversations in Restaurants Were Monitored the Same Way?
Imagine if your favorite venue in town was required to monitor the conversations of their customers and report them to law enforcement without a warrant. The owners of the venue would be considered liable for conversations taking place on the premises. Alternatively, imagine if you maintained a blog, and people regularly posted comments on your blog posts. Imagine if you were held liable for what others posted on your blog.
These bills have garnered ample support in Congress, and could pass if we don’t take action. To reiterate, sex trafficking is abhorrent, and we are not against cooperation with law enforcement to prosecute those who participate in sex trafficking. We are against forcing corporations to act as law enforcement, and we are against any legislation that could too easily infringe upon First Amendment rights. The intentions behind this bill are good, but they do not address the root of the problem. This bill would punish those who merely own, operate and use online platforms in a way the First Amendment allows.
Policy Scorecards
Our sister company, Golden Frog, scores federal technology legislation, and has rated this bill a 1 on a scale of 1-5. Learn more about these bills here.
