Online Sex Trafficking Regulation: Weighing Heinous Crime against First Amendment Rights

The Senate’s approval of the Stop Enabling Sex Traffickers Act (SESTA) on November 8, 2017 raises new questions on the role of law and free expression in the Internet industry. Though still awaiting the approval of President Trump, this amendment is one of the most notable actions the government has taken to protect consumers online in recent years. SESTA would amend Section 230 of the Communications Decency Act of 1997 to penalize websites that facilitate online sex trafficking[1]. With online child pornography and content assisting online sex trafficking pervasive on large sites, this act is the first attempt to rewrite the landmark Section 230 signed 21 years earlier that has been providing immunity to website providers from the information published by their users[2]. However, by holding operators of websites responsible for its user-generated content, it is arguably delegitimizing websites as platforms for free discourse and the exchange of ideas. SESTA intensified the long debate on how laws can best protect the public without infringing upon the First Amendment’s guarantee of free speech.

SESTA would be penalizing websites they define as knowingly supporting or assisting online sex trafficking. This act authored by Ohio senator Rob Portman will give sex-trafficking victims an easier way to sue social media companies, advertisers and other online platforms for their exploitative material. For example, is a classified advertising company that has been allowing advertisements of prostitution and the prostitution of minors. Backpage is involved in about 73% of all US cases on sex trafficking of minors[3]. SESTA would eliminate the protection Backpage enjoys under Section 230 and expose them to legal retribution. In light of such horrific crimes like child prostitution and trafficking facilitated by Backpage, SESTA aims to decrease criminal activity, specifically sex trafficking, by making social media giants and large search engines tighten their control of content.

The Communications Decency Act of 1997 was Congress’s first substantive attempt to regulate pornography on the Internet. It was introduced to the Senate of Commerce, Science and Transportation in reaction to the 1995 decision in Stratton Oakmont Inc. vs. Prodigy Services. Stratton Oakmont Inc. vs. Prodigy Services was a New York Supreme Court case that declared that online service providers who hold editorial roles, which made them publishers, are legally responsible for the speech of their customers[4]. Section 230 of the Communications Decency Act was subsequently passed to protect websites from liability for information provided by others[5]. By granting immunity to site providers, the Communications Decency act is considered the bedrock legal protection for the online world. Proponents of free expression endorsed this act as it allows websites to remain platforms for people to express controversial and diverse ideas without the fear of legal retribution.

SESTA’s introduction was inevitably met with high controversy and dissent on the grounds that it is eliminating the freedom of expression guaranteed by the First Amendment. By removing the legal immunity Internet companies had so far, websites are no longer places that can tolerate all critical and controversial speech[6]. Afraid of being sued, companies would implement tighter monitoring of content, leading them to pre-monitor their content, and the freedom of consumers to express themselves even in ways that do not facilitate online sex trafficking would inevitably be limited. If this act passes, companies like Facebook, Google and Twitter could also face many frivolous lawsuits and investigations harmful to their operations and image.

On the other hand, the introduction of SESTA was actually supported by many of the largest Silicon Valley corporations including Google, Facebook and Amazon[7]. Internet and tech companies have long opposed legislations that may in any way strip their protection provided by Section 230. But, this recent reversal in position may be due to the fact that sites such as Facebook already has their own measures of limiting harmful content such as advertisements for the prostitution of minors. Supporting SESTA is then part of a larger PR effort to ensure consumers that their safety is secured online. With increasing anxiety surrounding children’s online presence amid unstoppable revenue growth in Amazon, Facebook, Google, Microsoft and Alphabet, supporting this legislation that has a very specific and narrow focus on sex trafficking is extremely beneficial for the public image of these five most valued companies[8].

SESTA already has the unanimous support of 50 attorney generals in the US and passed the Senate Commerce Committee on November 8, 2017, but this legislation is currently placed on hold by Oregon Senator Ron Wyden[9]. A co-author of Section 230 of the Communications Decency Act, Senator Wyden believes this bill would stifle innovation as it favors big tech companies rather than smaller start-ups. SESTA would also expose smaller companies to criminal investigations and costly civil suits. While tech giants can afford to hire teams of lawyers, smaller start-ups often do not have the ability to afford expensive legal support. As a result, Wyden argues SESTA would limit the growth of start-ups that may have the potential to become something huge in the future.

Despite arguments on both sides, SESTA is ultimately a concrete step towards protecting consumers beyond amendments. The introduction of this legislation acknowledges the new question in the internet industry today: how should laws evolve as private internet companies serve as public goods? As we become increasingly reliant on social media platforms such as Facebook and Google, private companies are providing very real and extensive public services. However, public utilities have their unique regulations different from regulations of private companies. Internet was not just a technological innovation but also a legal achievement. Laws should reevaluate the changing landscape of free speech on the Internet and reorient accordingly to best protect consumers.