On August 1, 2017, Senator Rob Portman introduced S. 1693—Stop Enabling Sex Traffickers Act (SESTA). The bill, which places liability on websites that “knowingly facilitate” sex trafficking, has some in Silicon Valley concerned over the effect on free speech on the Internet.

SESTA amends the Communications Decency Act (CDA), a twenty-one-year-old law that protects online platforms from being sued for content posted by third parties on their websites, by clarifying that the CDA does not prevent enforcement of federal and state criminal and civil laws relating to sex trafficking.1 Additionally, the bill introduces federal liability for knowingly publishing information that “assists, supports, or facilitates sex trafficking.”2

The bill is a result of a two-year investigation by the Senate Permanent Subcommittee on Investigations into Backpage.com, a classified advertising site that knowingly facilitated online sex trafficking of women and children.3 A report by the subcommittee states that Backpage.com aided criminal activity not only by failing to remove sex trafficking ads or reporting them to law enforcement, but by deleting keywords such as “teenage,” “rape,” “amber alert,” and “little girl,” so as to filter the text of its ads to conceal their true nature.4

Backpage.com successfully relied on Section 230 of the CDA to escape liability in federal and state investigations.5 Thus, SESTA was introduced to help fight sex trafficking by making sure that those who profit from sex trafficking, like Backpage.com, can no longer hide behind the CDA.

However, opponents of the bill argue that SESTA may hinder free speech online and unfairly open liability for online companies.

A letter signed by ten trade associations, including associations that represent Facebook, Google, and Amazon, was sent to Senators Rob Portman and Richard Blumenthal, sponsors of SESTA and leaders of the Senate Permanent Subcommittee on Investigations. The letter argues against amending the CDA by stating that Section 230 of the CDA “is a bedrock legal protection for online services, ensuring that legitimate business can exist by providing that unknowing intermediaries including platforms, websites, ISPs, web-hosting providers, and online advertisers are not held liable for the actions of users.”6 Removal of the protection, they argue, will result in service providers being “forced to err on the side of removing their users’ content or face unsustainable liability for their users’ content that would harm the creation of legitimate diverse online services.”7

On the other hand, some believe that companies will not remove more content, but instead will dis-incentivize online platforms to maintain and develop reporting systems that identify sex trafficking content because SESTA imposes liability on those entities who “knowingly” facilitate sex trafficking.8

Others point out that SESTA will increase the number of lawsuits because it expands the definition of “enabling sex trafficking” and lets state attorneys-general and civil claimants sue online platforms.9 This will result in increased litigation costs that may cripple the development of new and smaller websites.

Finally, critics of the bill state that there is no need to amend the DCA because bad actors like Backpage.com can and are being prosecuted under existing trafficking laws. “Absolutely nothing in the 230 statute protects against violating federal criminal law,” stated Sen. Ron Wyden, one of the original architects of the DCA who also opposes amendment to Section 230.10

Nonetheless, opponents of the bill face a hard battle because of the bill’s strong emotional appeal. The Senate Commerce Committee heard testimony in September from victims’ families, who urged lawmakers to act. Most impactful were the words of Yvonne Ambrose, who, holding back tears, shared the story of how her sixteen-year-old daughter, Desiree Robinson, was brutally murdered and raped after a Backpage.com advertisement was posted offering sex with the child.11 Ambrose also stated, “Section 230 is standing in the way of justice for my child and other Jane Does out there like her.”12

Additionally, SESTA supporters have been able to respond to opponents by stating that the bill will not result in a chilling effect on free speech, because the bill is a “narrowly-crafted legislation that targets websites engaged in one criminal activity: sex trafficking.”13 They state that legitimate sites like Google and Facebook would not be affected because the bill keeps the CDA “good Samaritan” provision, which protects from frivolous lawsuits those sites that regulate their content to proactively block or screen out offensive material.14

It is important to note that internet companies do not oppose efforts to fight sex trafficking. In fact, Google has recently pointed out some of its own initiatives to “tackle the heinous crime of sex trafficking.”15

Though SESTA has escaped some of the partisan gridlock that is usually seen in Congress, it has created division within the tech community. While Facebook, Google, and Amazon oppose the bill, other tech companies, like Oracle, have expressed their support.16