Sex trafficking bill is turning into a proxy war over Google
Why does Oracle support SESTA?
Since the Stop Enabling Sex Traffickers Act of 2017 was introduced in the Senate in August, tech companies and advocacy groups have been mobilizing in a battle to control its message. Digital rights organizations like the Electronic Frontier Foundation have called it “disastrous for free speech online,” asking its members to call their representatives in Congress. Meanwhile, supporters of the bill have emerged from unlikely quarters — including tech giant Oracle and Hollywood studio 21st Century Fox — and are using the legislation as an opportunity to take shots at Google.
SESTA carves a hole in section 230 of the Communication Decency Act, the liability shield that protects websites from being accountable for the user-generated content they host, by potentially expanding criminal liability. Although the law is intended to target sex trafficking and nefarious websites like Backpage, the vague wording of the bill “potentially implicates every online service that deals with user-generated content,” wrote Eric Goldman, a law professor at Santa Clara University.
SESTA allows state attorneys general to prosecute websites under state laws. The worry is that the most restrictive regime created by any one state would become the new baseline of regulation in the entirety of the United States. So, if South Carolina passed a law that required sites to authenticate all of its users or face liability for any posts that promoted sex trafficking, every website operating in the US would have to adhere to those rules as well.
SESTA also opens websites up to civil suits over user posts that promote sex trafficking. “What you're going to end up seeing is mass lawsuits,” said Julie Samuels of Engine Advocacy, a nonprofit organization perhaps best known for its work around patent reform. She expressed concern that the lawsuits would sweep up legitimate good actors and end up crushing small startups.
Gary Shapiro of the Consumer Technology Association (which holds the Consumer Electronics Show every year) echoed her concerns. “We recognize that attempts to amend Section 230 target sex traffickers are well intended. However, the likely result will be to create a trial lawyer bonanza of overly-broad civil lawsuits,” he said in a written statement.
It’s obvious why companies like Google, Facebook, and Twitter would fear SESTA. But most tech companies have been circumspect about their opposition to the bill, choosing to voice their concerns by proxy through trade groups like the Internet Association, which includes Google, Facebook, Microsoft, Amazon, and Twitter among its members.
The problem, of course, is that they’re taking a stand against a bill that purports to fight sex trafficking. “Obviously no one supports human trafficking,” said Samuels. “But you're going to start to play with fire when you play with how the internet works.”
It’s not an attractive message, and for that reason, companies like Facebook still have no comment on SESTA at this time. Google, however, has since spoken up. Earlier this month, Susan Molinari, vice president of public policy, wrote a blog post about the bill, expressing “concerns” about the bill in the softest language possible. “We’ve met with the sponsors of the particular bill and provided alternatives that will encourage this environment, and we’ll continue to seek a constructive approach to advance a shared goal.”
“Let there be no mistake,” she wrote, “Backpage acted criminally to facilitate child sex trafficking, and we strongly urge the Department of Justice to prosecute them for the egregious crimes against children in the U.S. and abroad.”
Meanwhile, those in favor of the bill have publicly reamed companies for “tech industry obstruction.” A joint statement by a coalition including anti-trafficking advocacy groups and relatives of trafficking victims accused tech companies of backing a site they describe as “the largest online platform where sex trafficking victims are bought and sold,” saying, “While some tech companies are now publicly calling for Backpage to be prosecuted in federal court, this is in stark contrast to their private actions in support of Backpage.”
This accusation is in reference to instances in which digital rights groups like the Center for Democracy and Technology and the Electronic Frontier Foundation filed amicus briefs in cases against Backpage brought by state attorneys general. CDA 230 does not shield platforms from federal prosecution. The law very clearly outlines that exception to the liability shield, anticipating that crimes like child pornography and child exploitation would be prosecuted by the federal authorities. The US Department of Justice, for whatever reason, has not shown any inclination to pursue sites like Backpage.
As the fight gets louder, more and more companies have piled into the fracas. Although most of the tech industry opposes the bill (albeit, through the trade associations), Oracle has offered a “strong endorsement” of the proposed law. “Your legislation does not, as suggested by the bill’s opponents, usher the end of the Internet,” wrote Kenneth Glueck, a senior vice president of Oracle, to Senators Portman and Blumenthal, who are sponsoring the bill. “If enacted, it will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking.”
21st Century Fox has also since waded into the mix to offer its public endorsement of the bill.
Oracle and 21st Century Fox don’t have much skin in the game when it comes to the sorts of liabilities SESTA could actually introduce, but 21st Century Fox’s interest in the matter can be easily read between the lines. As Variety notes, the MPAA has long locked horns with Google over how proactive the tech giant should be in monitoring for piracy. In 2014, emails from the Sony hack revealed that the MPAA and six studios were laser-focused on taking down “Goliath” — what appeared in context to be a codeword for Google — through strategies such as collaborating with ISPs and state attorneys general.
The copyright safe harbor provisions aren’t affected by SESTA, but still, weakening any liability shield would deal a major blow to a long-time adversary and possibly even start a legislative trend favorable to Hollywood studios.
Why Oracle would come out so publicly in favor of the bill is less obvious, since the law lacks even a tenuous connection to their business model. However the company’s animosity towards Google is well-documented, from its $9 billion lawsuit over Android, to Oracle’s funding of the Google Transparency Project, which put out a report earlier this year claiming that Google had bought academic influence through grants.
In a bizarre way, Google has become the favorite target of those who support SESTA. In August, the National Center on Sexual Exploitation attempted to connect the bill to then-ongoing scandal around James Damore and his infamous memo. “If Google really wanted to empower women, it would stop obstructing legislation that would decrease sex trafficking online. At the end of the day, it doesn't matter if Google is hiring women if they are also lobbying to keep women enslaved on websites like Backpage.com because they're afraid of losing money,” said Dawn Hawkins, executive director of NCSE.
It’s unclear what problem the bill could address at this juncture, since Backpage shut down its adult services ads in January, in the wake of several arrests and raids by the California Department of Justice. Although a judge dismissed the charges in December, ruling that CDA 230 protected Backpage’s activities, Backpage buckled under the ongoing pressure and shut down the adult services section anyways.
The bill, which was introduced with twenty-one cosponsors, has garnered widespread bipartisan support. Although it has met with opposition from other legislators — in particular, Senator Ron Wyden (D-OR) who is responsible for the original passage of CDA 230 in 1996 — the bill still seems to have very good chances of passing.
