Is the internet broken yet? I suppose if you’re reading this, it isn’t. And if you’re not reading this, you’re looking at something else. On the internet.
Yesterday, the House passed the hotly-contested FOSTA, which is now the acronym for the anti-sex-trafficking legislation that combines the earlier bill SESTA with various amendments. Eric Goldman has called the progeny a Frankenstein, a “worst of both worlds” bill that will only aggravate what he calls The Moderator’s Dilemma, meaning that internet platforms wanting to avoid potential liability for facilitating sex-trafficking will be stuck with two options: either moderate everything, which is impossible for some sites; or moderate nothing, which will disincentivize sites from acting responsibly, including the moderation of possible sex-trafficking content.
The argument that this legislation won’t help any victims of sex-trafficking, and might even make matters worse, has been echoed by the EFF and other “digital rights” organizations, including Mike Masnick in a recent post-game, Techdirt tirade, lashing out at various players in the industry, including Facebook, for fumbles and other tactical errors that allowed this legislation to succeed. All parties who’ve stood in opposition to these bills have complained about the political reality that nuanced arguments can be tough to present without looking like they’re being soft on sex-traffickers. And I understand how frustrating that can be. It’s almost like trying to discuss the finer points of copyright law while a mob is labeling you a draconian, Luddite, speech-hating, maximalist.
Nearly all parties expect this bill will sail through the Senate and become law, and time will tell whether it provides any form of remedy for the victims of sex-trafficking or, as the critics claim, creates undue liability for innocent site owners while doing nothing to address the underlying problem. But apropos concerns about Goldman’s Moderator’s Dilemma, it is important to remember that the alternative proposal is to maintain the status quo under which the site Backpage was generally held to be immune from both civil and criminal liability, despite sufficient evidence to indicate that a case against its owners should at least go to trial.
In an earlier post on this subject, I labeled the critics of anti-trafficking legislation the NRA of cyber-policy on the grounds that their approach appears strikingly similar when it comes to defending the absoluteness of the liability shields crafted in the late 1990s, at the birth of the commercial internet. In the present climate, it’s hard not to compare this advocacy with the calcified view of the Second Amendment insisted upon by gun-rights activists conflating civil rights with the profit motives of firearms manufacturers. Like the NRA, the EFFs of the world seem determined to accept only a maximalist approach to policy, even where some minimal amendment might do some good.
By “minimal” in this context, I mean that the fundamental safe-harbor mechanism in the Communications Decency Act doesn’t change substantively from what it was before these bills, other than to explicitly state that it was never the intent of Congress to provide immunity for alleged profiteering from sex-trafficking. Moreover, the population of internet enterprises that will even need to take notice of this new law is quite small. One’s business either has to be in some way involved in the sex trade (e.g. host adult ads), which is a limited set; or one has to host a large volume of user-generated content (e.g. YouTube, Facebook), which is also a limited set, but one that can afford compliance as these are some of the wealthiest companies in the world. Meanwhile, the remaining 99.X% of the internet should keep plugging along without feeling any particular urgency in a post-FOSTA environment.
I certainly can’t claim that FOSTA is without flaws—or even that I have the expertise needed to identify exactly what those flaws might be. But as imperfection is a natural characteristic of most legislation, this is supposedly why we have a judiciary tasked with interpreting statutes—and why I say that only time will tell whether this new law will achieve its intended benefits or yield unintended consequences. In either case, consumers who use the internet are unlikely ever to notice any change at all; and if even a few victims of sex-trafficking are actually helped in some way, this seems like an easy choice.
Meanwhile, I remain doubtful that the volume of doomsday rhetoric aimed at the anti-trafficking bills is ultimately about this legislation per se. One reason it seems clear that no provision would ever satisfy the staunchest critics—the EFF will even rail against voluntary measures instituted by industry—is that the slightest adjustment to the safe harbor shield in the CDA implies that perhaps the safe harbor can be amended in the DMCA, too. And that poses an existential threat—not to the internet, of course, just to the maximalists hellbent on defending laws passed in 1996 and ’98 as though they must be the last word for all eternity.
