Category: Law & Policy

Taking a Serious Look at SESTA

Well, here we go. The internet industry, with its cortege of hyperventilating helpers, is shouting censorship at the prospect of passing Senate Bill 1693, known as the Stop Enabling Sex Traffickers Act (SESTA). With its usual flair for nuance, the Electronic Frontier Foundation declares that the measure would SPELL DISASTER FOR SPEECH AND INNOVATION. Again.

There is, of course, nothing wrong with defending speech and innovation, but there is a lot wrong with doing so while overlooking the fact that the internet does foster unintended negative consequences, like fake news or the ability to innovate new ways to commit old crimes. As usual, the issues constituent to SESTA require more serious consideration than the standard talking points on the theme that Section 230 of the Communications Decency Act (CDA) is sacrosanct and that any amendment to it will necessarily destroy all that is good and great about cyberspace.

In fact, this story is clouded by a number of complex topics, including some questions that remain unanswered. As such, this post is not a full-throated defense of S. 1693, but rather an attempt to unpack some of the overlapping issues. Whatever the practical pros and cons may be of passing this bill, though, the one thing that seems certain is that the internet will be just fine. Whatever that means. For context, it’s worth remembering that many of the legal remedies called for in SOPA (which was going to destroy the internet in 2012) have been applied in specific cases worldwide, and still the internet hums along. Or screams. Or whatever it does.

Section 230 of the Communications Decency Act

I’ve written in some detail about CDA 230 in other posts, but here’s a refresher:

The liability shield provided to ISPs by Section 230 came about as an effort to incentivize good samaritan behavior on the part of online service providers. Simply put, if the ISPs and web platforms would take action to prevent “obscenity” and “sexual exploitation of children” from appearing on their platforms, taking this action would not consequently place the providers in the role of “publishers,” which would otherwise make them subject to liabilities for various third-party content posted by users.

Since its passage in 1996, Section 230 has been the foundation of the principle that service providers are generally held harmless for any civil or criminal liabilities that may result from the actions or speech of their users. As a simple example, if I commit libel on this blog, the harmed party may not successfully sue WordPress.

On the other hand, even in cases where site owners are clearly or allegedly taking affirmative action to control the content on their sites (i.e. playing the role of publishers), defenses of blanket protection under CDA 230 have been argued in court and have been supported by the internet industry as well as organizations like EFF. This refers to the Backpage story, but more on that below. (Also see this post about Yelp!.)

S. 1693 Proposal

The Stop Enabling Sex Traffickers Act (SESTA) is a bi-partisan bill introduced by Senator Portman (R-OH). The substantive change to Section 230 of the CDA would add language pertaining to anti-sex-trafficking to sub-section (e)(1). This is the part of the statute stating that 230 has “no effect on criminal law.” The statute already singles out “obscenity” and “sexual exploitation of children” apropos the CDA’s original intent, and 1693 would add language explicitly stating that Section 230 shall not be construed to impair the enforcement of laws prohibiting “sex trafficking of children; or sex trafficking by force, threats of force, fraud, or coercion.’’

The EFF states that this language will “… expose any person, organization, platform, or business that hosts third-party content on the Internet to the risk of overwhelming criminal and civil liability if sex traffickers use their services.” Assuming this declaration alone were true, let us at least clarify that even if the amended CDA were to result in an uptick of trafficking victims attempting to sue the likes of Facebook, Google, and Twitter (and that’s a huge IF), this would in no way “spell disaster for speech and innovation online.” It’s a bit like claiming that if GM were sued in a class-action for some kind of passenger-safety negligence, then all automotive innovation would consequently come to a halt.

To read the EFF rhetoric in defense of “small internet businesses,” one might get the idea that sex traffickers can easily exploit any type of platform unbeknownst to the owners and thus threaten the site owners with liability for a crime they didn’t commit. How that would happen in the real world, though, is hard to fathom. A platform would have to be fairly large, like Facebook or YouTube large, for traffickers to exploit the site for any period of time before being caught by its operators. At that point, as long as site monitors take appropriate action to remove material and/or notify law enforcement, the liability shield of Section 230 is still in force.

All 1693 appears to do is state that platform operators are no more allowed to facilitate sex trafficking than they are allowed to host child pornography. Note the absence of child porn on legal web platforms and the endurance of speech and innovation. More specifically, sex traffickers are going to operate via sites that are already involved with the sex trade, which is not the majority of websites.

Efficacy in Fighting Trafficking

Whether or not a bill like 1693 can have an actual effect on mitigating sex trafficking is a far more complex and critical question than whether or not this amendment to the CDA would have the chilling effects implied by EFF and others. Unfortunately, the very reasonable questions about efficacy are being exploited by the internet industry as a “right goal, wrong solution” talking point. In this regard, I believe the track record speaks for itself: these parties typically reject both legislative and voluntary measures out of hand when it comes to mitigating various type of harm caused via web platforms. So, it is hard to take their objections without a big chunk of salt.

Several of the usual suspects critical of SESTA have picked up on a new paper written by Professor Alexandra Levy, an expert in human trafficking at Notre Dame Law School. Titled The Virtues of Unvirtuous Spaces, Levy asserts that measures like shutting down “adult” sections of websites and/or by holding the site operators accountable for trafficking that may occur via their sites, we may lose opportunities to identify and rescue victims. In a nutshell, Levy contends that “adult” sites like Backpage make trafficking visible to the public and to law enforcement when it would otherwise be less visible while still occurring at the same scale. So, if a bill like 1693 would indeed result in fewer victims being rescued, Levy argues, then it is simply bad policy.

It’s hard to disagree with that premise, but the core question she asks demands an answer based on data; and her paper falls short, in my view, with regard to solid evidence. While it is undoubtedly true that public postings in an adult section of a website must expose criminal activity and, therefore, lead to liberation of victims and arrests of traffickers, the question Levy’s paper does not adequately address is whether or not certain sites have fostered an increase in trafficking overall by providing low-risk opportunities for traffickers and “customers” that otherwise would not engage in trafficking. If certain websites have led to a substantial increase in trafficking, while also resulting in a handful of victims being rescued, this is not a net positive.

Levy does question whether trafficking overall is in fact on the rise or if only reports of trafficking are on the rise, but absent clear data to answer exactly this question, she still draws the reader to conclude that it is better to have sites where trafficking may occur than it is to vilify the sites and their owners. She may be right, but her paper seems overly reliant on anecdotal evidence to support this conclusion. Moreover, Levy relies considerably on a narrative in which prudish legislators, attorneys general, and citizens may be acting on a desire to hide unsavory behavior more than they are interested in saving victims from criminal activity. In this sense, S. 1693 is portrayed as legislative theater—motivated by an eagerness to show that action is being taken and to blame someone for the deplorable crime of trafficking.

Levy suggests that website operators make easy targets with the added bonus that, if their sites are shut down, the problem seems to vanish when it really doesn’t. She may be correct in her assumptions about some of the characters in this overall narrative, but her overemphasis of this theme strikes me as a distraction from the central question. Either certain sites drive an increase in trafficking or they don’t. In either case, despite the internet industry pundits’ trotting out Levy as a reason to leave 230 alone, her arguments — right or wrong — are not necessarily relevant to amending the statue. And that brings us to Backpage.

The Backpage Question

The only issue at hand with regard to the operators of Backpage is whether there is substantial evidence to show that they took affirmative action to control the content of their site. If so, this should vitiate their liability shield under Section 230 and leave them open to both criminal and civil litigation. If law enforcement, Congress, or an AG can prove that the operators acted as “publishers,” the CDA is no longer a defense; and if the government can further demonstrate that the parties knowingly took affirmative action which either contributed to trafficking, or engaged in willful blindness to trafficking, these are criminal acts.

Hence, Levy’s proposal that a site like Backpage may lead to some amount of interdiction, while worthy of discussion in a certain context, is irrelevant apropos the criminal conduct (or not) of the Backpage owners. (To put this in another context, if the manager of a child services organization rescues ten thousand kids and only molests five of them, guess what’s going to happen.) More specifically, it is very hard to see how Congress’ singling out sex trafficking in the CDA, while leaving the rest of the statutory mechanisms in place, is informed much by Levy’s paper at all. Either the operators of Backpage committed crimes or they didn’t, regardless of any unintended benefits of the site’s existence.

(I wish to make it clear that I have no view at this time as to the guilt or innocence of the site owners at Backpage. That’s an ongoing investigation, and due process must be respected. The emphasis on possible criminality in this post is in the service of making points about the CDA.)

In October of last year, I wrote about the arrest and the indictment against Backpage CEO Carl Ferrer and two of his associates. At the time, the evidence seemed fairly damning, but by the end of the year, a California Superior Court dismissed the felony charges against all three. This July, The Washington Post reported that new evidence has come to light indicating that the site operators have been active participants in directing the sex-trade content of the site. The Post also reports that early in 2017, a Senate subcommittee investigation revealed that the Backpage operators had been editing “adult” ad language to disguise incidences where underage girls were involved.

The “adult” ads are the source of Backpage’s millions in revenue; the ads for toasters and car parts, etc. are free while the “adult” ads are paid. So, there is no question that Backpage is in the sex business; the question is whether or not they’ve ever been in the trafficking business, too. It is admittedly a very blurry area, where the consensual sex trade, consensual hook-ups without trade, and sex trafficking all intersect.

It’s easy to get lost in the emotional responses to the themes in this story—from revulsion to a depraved criminal act to myriad views about sex in general. And then, along comes the EFF and the internet industry crying censorship and labeling S. 1693 yet another existential threat to the almighty internet. I believe we can have a very high degree of confidence that the bill presents no such hazard to the web, even if we don’t have sufficient evidence to determine whether this amendment itself would help mitigate trafficking or worsen the plight of victims — as Professor Levy suggests would be the case.

Section 230 was never meant to be a blank check, despite many internet advocates’ attempts to portray it as such. If nothing else, that’s what Congress seems to be saying with this bill; and the internet industry might want to consider how far they’re going to press the theory that the law was ever meant to shield criminal conduct. To the contrary, this section of the CDA began as an effort, for better or worse, to protect children from exploitation; and if it is proven that a few site owners willfully facilitated the exploitation of children, the Googles and Facebooks of the world might want to worry less about their liability exposure and more about the commitment to be the good samaritans that the law they cherish actually requires.

Levine: How Google Money Really Influences Research

Last week, after antitrust scholar Barry Lynn praised the European Commission’s decision to fine Google for anti-competitive practices, his Open Markets program at the Google-backed New America Foundation was terminated.  Robert Levine offers a nuanced perspective on the relevance of Google-scale money in policy think tanks, suggesting that what isn’t said may be at least as significant as what is said.

“That’s one of the big problems in the think tank world–not what direct pressure Google might have put on New America, but the idea that it might not be able to afford to upset one of its main benefactors. How many scholars decided not to challenge Google not because of a confrontation but out of the desire to avoid one?,” Levine writes.

See full article at FastCompany here.

Scholar Takes on Empiricist View of IP

Photo by porpeller

Empirical evidence tells us that all human existence is a sand castle. At best, if no other cataclysm comes first (and one probably will), the inexorable expansion of our sun will wash away the Earth and any evidence that we were ever here. One possible exception may be the two records affixed to the Voyager spacecraft, still traveling years beyond their life expectancy as Voyager 1 is now about 13 billion miles from Earth. Of course, the odds of those records being discovered by intelligent beings—let alone beings that find us interesting—are less than minuscule.

Empiricism can tell us which notes, instruments, chords, time signature, and lyrics describe Chuck Berry’s recording of “Johnny B. Goode” are on board Voyagers 1 and 2; but these data can hardly explain what it is about Berry’s playing that moves us more than others—or for that matter, why anyone would invent a guitar or learn to play it in a certain way, or why humans would bother building a pair of spacecraft to explore the solar system and then choose Chuck Berry as one of a very few representatives to say, This is who we were.

“In the Bible’s second creation account, God breathes the ‘breath of life’ into the first human, charges him with the responsibility of tending the garden, and provides him with a companion with whom he will fill the Earth with descendants. In other words, God gives humanity the opportunity to create culture.”  

This excerpt comes from a new paper by David W. Opderbeck, professor at Seton Hall University School of Law.  It is a fresh response to Mark A. Lemley’s 2015 paper, which asserted that all non-empirical arguments for the purpose of intellectual property law are “faith based” in the sense that they represent the kind of magical thinking that rejects science, data, and logic.

In May, inspired by Professor Robert P. Merges’s response to Lemley, I wrote a post discussing the utilitarian vs. natural rights views of intellectual property.  But Opderbeck, an IP scholar and theologian, offers a rebuttal that is ostensibly a response to Lemley, but which more broadly balances empiricism itself with the notion of “faith,” if we can use the term to generally describe the intangible principles that motivate humans to make choices, with or without religion.

As a secularist myself, I find the subject engaging because, contrary to many assumptions about us non-believers, atheism neither demands nihilism nor moral ambiguity nor a reduction of all human activity to the cold analysis of empirical study.  In short, one need not believe in God or practice any particular religion in order to act on “faith” that first principles exist upon which we can build a humane system of law. This is particularly important in nations where laws are meant to be secular.

Intellectual property law is particularly vulnerable to attack by academic (and not so academic) theorists because it is conceptual in nature and its utility is applied by a relatively small segment of the population.  Although society as a whole benefits from IP, the legal mechanisms are generally arcane; and so, it is relatively easy to propose and evangelize wide-ranging skepticism regarding IP’s original purpose.  Moreover, because one commonly-accepted goal of IP law is “incentive,” and because we Americans tend to view everything in the context of business—and because American creators are among those who can attain considerable wealth—it is not very surprising that many opinions tilt away from a natural-rights view of IP toward a utilitarian view.  Opderbeck, however, quarrels with the premise that we should approach any body of law—not just IP—from this perspective. “Without some first principles that justify why some form of consequentialist calculus produces normatively ‘good’ results,” he writes, “the utilitarian approach hangs in mid-air.”

Here the word good refers directly to the Bible’s creation myth, as in “God saw that it was good,” which is a theologian’s way of saying that purpose cannot be defined exclusively, if ever, by measuring specific outcomes. In fact, the values we cherish most—empathy, charity, love, creativity, civil liberty, etc.—do not derive their inherent “goodness” by virtue of measurable results.  “The legal positivism and related utilitarianism Lemley espouses … can speak in terms of maximization, but it cannot answer on its own terms why maximizing social welfare is ‘good’,” Opderbeck writes.

Where I imagine confusion is likely to occur with Lemley’s description of “faith based intellectual property” is the inherent tension that often exists between secular views, which are assumed to be rational; and religious views, which are assumed to be irrational.  As a secularist, I would agree that certain religiously-based views are either dysfunctional or mere rationalizations for cruelty toward the heterodox; but the same can be said of a strictly empiricist view as well.  And this is one of the more compelling points Opderbeck makes:  that Lemley’s view “reflects a monochromatic picture of human culture. Indeed, it reduces the human to the technological, and thereby encodes the very sort of authoritarianism it purports to eschew.”

Here, Opderbeck cites the story of the Tower of Babel as an allegory for technocracy.  “The utilitarian technocrats of our age are like Babel’s tower-builders,” he writes. The effort to encompass all human values within the rubric of what is quantifiable produces a convincing simulacrum of the ziggurat: precise, logical, geometric, orderly. It reaches to heaven, but never comprehends the transcendence that awaits it there, complacent in the belief – the faith – that it occupies the center of the universe, that there is no God or other power beyond its foundations in the Earth.”

If I may presume to place this in context to the current, public debate about intellectual property and the internet, the industry’s chronic assertion that an individual, human right like copyright “stands in the way of innovation” is analogous to the Tower builders’ blind insistence that their industry represents some grand, collective endeavor without regard for direction. Meanwhile, the curse of Babel—that we will no longer understand one another—is manifest daily in our contemporary politics.  “Utilitarian theories of culture do not produce precision and order. In the end, they produce oppression and violence, which leads to the babble of Babel,” writes Opderbeck.  Sounds like Twitter to me.

On the other hand, there is something to be said for building ziggurats, and no tower has ever reached higher or come closer to “touching the hand of God” than the Voyager mission with its gold record sampler plates of human history.  And while it is true that many religious (and even not so religious) people would not describe Chuck Berry himself as “good,” and some will have even described his music as “wicked,” I think most of us (even if we’re not from Boston) would agree that his music is “wicked good.”  This wordplay of course is echoed in the song’s polysemic title “Johnny B. Goode,” implying effort toward some goal (and morality?) not yet achieved.  So, the idea that this particular recording is among the evidence we sent into the unknown distance of eons, most likely to be received by nobody, suggests that we humans need not be blindly religious in order to consider that we do some very great things as a matter of faith.