Stop Enabling Sex Traffickers Act

SESTA was co-sponsored by 27 Democratic and Republican senators; early supporters of the bill included members of the Permanent Subcommittee on Investigations, which is chaired by Portman and led the aforementioned investigation into Backpage.[13] Representative Mimi Walters stated that websites such as Backpage have become the "storefronts" for the modern-day slave trade and that the FOSTA-SESTA legislation will help prosecutors "crack down on websites that promote sex trafficking" as well as provide recourse for victims.[14] Representative Carolyn Maloney (D-NY) stated her support for the FOSTA-SESTA package, believing that "Congress must act to clarify that Section 230 of the Communications Decency Act was never meant to shield sex traffickers."[14]

The New Jersey Coalition Against Human Trafficking called the FOSTA-SESTA package a "groundbreaking bill" in the effort to bring justice to victims.[14] The FOSTA-SESTA package is also supported by other members of advocacy groups such as ECPAT Executive Director Carol Smolenski, Operation Texas Shield founder John Clark, and Faith & Freedom Coalition Executive Director Timothy Head.[14]

21st Century Fox and Oracle Corporation have pledged support for the bill; Oracle vice president Kenneth Glueck stated that it would "establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking".[15] Fox stated that "everyone that does business in this medium has a civic responsibility to help stem illicit and illegal activity. While it is impossible to formulate laws to govern every possible situation, [the] legislation is a rational and measured effort to deal with a tragic and pernicious problem that is global in scope."[16]

Writing on behalf of the U.S. Department of Justice, Assistant-Attorney General Stephen Boyd addressed Chairman of the House Judiciary Committee, Bob Goodlatte, expressing concerns that provisions of the bill would make it even harder to prosecute sex traffickers. Additionally they expressed concerns that certain provisions would violate the Constitution's ex post facto clause and thus be unconstitutional.[17]

Opposition to the bill was voiced by members of Congress as well. In an official statement Senator Ron Wyden stated, "I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favor big tech companies at the expense of startups and that it will stifle innovation."[18] The only other Senator to oppose the bill was Rand Paul.[2]

SESTA has been criticized by pro-free speech and pro-Internet groups including the Center for Democracy and Technology, Electronic Frontier Foundation, the ACLU,[19] Engine Advocacy, the Sex Workers Outreach Project (which described SESTA as a "disguised internet censorship bill"),[20] and the Wikimedia Foundation,[21] who argue that the bill weakens the section 230 safe harbors, and places an unnecessary burden on internet companies and intermediaries that handle user-generated content or communications.[15] EFF staff attorney Aaron Mackey told the Washington Examiner that under SESTA, service providers would be required to proactively take action against sex trafficking activities, and would need a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies).[13] Online sex workers argued that SESTA would harm their safety, as the platforms they utilize for offering and discussing sexual services (as an alternative to street prostitution) had begun to reduce their services or shut down entirely due to the threat of liability under SESTA.[22][23][24] Others have demonstrated how the platforms that still facilitate sex work have increased their prices and engaged in more exploitative practices, leaving sex workers with limited bargaining power.[25] Social media hashtag campaigns emerged to advocate against the bill for these reasons, such as #LetUsSurvive and #SurvivorsAgainstSESTA.[26][27]

In its original form, the bill defined "participation in a venture" as "knowing conduct by an individual or entity, by any means".[11] The EFF and the Internet Association argued that any online service could theoretically be used to "facilitate" sex trafficking, and that the law would have a chilling effect on voluntary moderation of websites (as encouraged by the "Good Samaritan provision" of section 230, which states that providers are not liable on account of "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be [objectionable]"),[28] as even the mere discovery of sex trafficking content could constitute knowing conduct of participation in a venture, and that dismissing the risk could constitute reckless disregard.[15][29][30] The Senate voted down a proposed amendment by Ron Wyden, which would have clarified the law to ensure that moderation does not contribute to liability.[31][32] The Consumer Technology Association stated that SESTA was well-intentioned but could "create a trial lawyer bonanza of overly-broad civil lawsuits".[15]

The EFF further argued that websites which knowingly facilitate sex trafficking were already liable per Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, which ruled that section 230 immunity does not apply if an online service was directly involved in the creation of content that violates civil law.[29] Exposure of websites to liability under state trafficking laws was also considered a contradiction of 230, as it was designed to help protect service providers from varying state civil laws.[29] In late March 2018 and early April 2018, following the bill's passage but prior to its implementation, courts in Massachusetts and Florida made rulings affirming that Backpage was liable for facilitating sex trafficking, because its practice of intentionally removing keywords pertaining to minors made it a provider of content subject to liability, as opposed to an interactive computer service.[33][34]

The Internet Association stated that it would "support targeted amendments to the Communications Decency Act that would allow victims of sex trafficking crimes to seek justice against perpetrators", but initially criticized SESTA for using terms which were undefined or broadly-interpreted in case law, and argued that it would "introduce new legal risk not just for internet services that do not knowingly and intentionally facilitate illegal conduct, but also create risk for an incredibly broad number of innocent businesses by expanding the notion of contributory liability."[30] The Internet Association pledged support for SESTA on November 3, 2017 after an agreement to clarify portions of it; in particular, the definition of "participation in a venture" was amended to replace "knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation" with just "knowingly assisting, supporting, or facilitating a violation".[11]

It has been suggested that SESTA could be used as a model for future exclusions from Section 230 immunity, such as copyright infringement (especially with its support from major film studios), and terrorism content.[15][16][13][35]

Initially The Internet Association (which represents Facebook, Google, Microsoft, and other tech companies) voiced opposition to the bill. However, after coming to a compromise on the wording of one section, they withdrew their opposition. The proposed bill originally defined participation as “knowing conduct, by an individual or entity, by any means, that assists, supports or facilitates a violation of sex trafficking laws" and was amended to “knowingly assisting, supporting, or facilitating a violation.”[36]