Three years ago this month, Congress passed a law that got people killed.
The Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act, better known as SESTA/FOSTA, sailed through the House and Senate and were signed into law by then President Donald Trump in April 2018.
The bills’ sponsors said the laws were intended to address online sex trafficking by amending Section 230 of the Communications Decency Act (CDA) to create new liability for website owners and online platforms. Instead, they wreaked havoc on some of the most vulnerable people in our society.
In the immediate wake of SESTA/FOSTA’s passage, sex workers—particularly queer and trans folks of color—were cut off from online platforms and tools they used to make a living and keep themselves safe. This included collectively maintained “bad date” lists, commonly used to protect vulnerable workers from violent assaults on the job. Sex workers and advocates reported an increase in attacks, arrests, self-harm, and suicide. “We can’t screen clients like we used to, which is what was keeping us safe,” Lexi, an escort from Florida, explained in an interview with HuffPost. “This bill is killing us.”
Now, four years later, lawmakers are once again obsessed with the idea of changing Section 230. Their reasons vary.
Republicans latched on to largely evidence-free claims of anti-conservative bias in content moderation. While their concerns about the power that large platforms hold over what can be seen and heard online are valid, they incorrectly believe that changing or repealing Section 230 will force tech platforms to moderate in a manner more to their liking (or they could just be cynically trying to rally their base while claiming to be the true defenders of free speech).
Ironically, according to the data from numerous studies, like this one from the Brennan Center for Justice, the groups most often censored and deplatformed on social media are those which conservatives regularly demonize and attack: people of color, trans women, and Arab and Muslim folks living outside the U.S., whose speech is systematically ensnared in the wide nets of automated anti-terrorism filters.
Democrats, for their part, have misguidedly blamed Section 230 for a litany of real-world harms—ranging from the viral spread of hateful and false content on social media platforms to vaccine hesitancy and teenage mental health. They tend to be right about the harms, as well as the ways Big Tech companies’ business practices exacerbate them. But they consistently fail to explain how their proposed changes to Section 230 would actually solve the problems they’re identifying. And worse, they often willfully ignore the ways that such changes can backfire, and harm the very communities Democrats say they want to protect.
All told, nearly 40 bills have been introduced in the last two congressional sessions that would amend Section 230, or repeal it entirely. One of those bills, the EARN IT Act, recently passed out of the Senate Judiciary Committee, despite overwhelming opposition from LGBTQ+ organizations, security experts, and human rights groups. There is a growing sense of inevitability in Washington, D.C., around Section 230.
One staffer for a top lawmaker told me outright, “Look, we have to do something on 230 soon, whether it’s good or not.”
It’s unacceptable for lawmakers to legislate with the goal of scoring political points while ignoring the collateral damage to marginalized people’s safety and rights. If Congress actually wants to address the harms of Big Tech—and avoid repeating mistakes that have gotten people killed—it’s essential that they learn from SESTA/FOSTA’s catastrophic failure. Policymakers in Washington, DC, need to listen to sex workers.
Fortunately, there’s a bill that would require the U.S. government to do just that: the SAFE SEX Workers Study Act, which was just re-introduced by Democratic Sens. Elizabeth Warren and Ron Wyden, as well as Democratic Reps. Ro Khanna and Barbara Lee. It would task the Department of Health and Human Services with conducting a study on the public health impact that SESTA/FOSTA had on sex worker safety. And it would require the Justice Department to study whether the legislation actually accomplished its stated goal of cracking down on human trafficking.
Supporting a common sense information-gathering bill should be non-controversial for any lawmaker who is serious about legislating tech platforms responsibly. Even members of Congress who firmly believe that changes to Section 230 are needed should want to gather as much data as possible to inform their proposals.
A report from the Government Accountability Office (GAO) last year showed that SESTA/FOSTA has almost never been used to aid federal prosecutions. Even worse than being ineffective, the loss of platforms has actually disrupted investigations into trafficking and identification of victims. Shouldn’t lawmakers want to know more about that?
The SAFE SEX Worker Study Act has broad support beyond the sex worker community—from prominent LGBTQ+ organizations like the Human Rights Campaign and the National Center for Transgender Equality, anti-trafficking groups like Freedom Network USA, health advocates such as AIDS United, and civil rights leaders, including the American Civil Liberties Union (ACLU) and Color of Change.
We already know that SESTA/FOSTA set off a tidal wave of deplatforming and content removal. And it wasn’t just adult content that was washed away. Platforms’ indiscriminate purges led to censorship of artwork, paintings, and cartoons by queer artists, and sex education videos made for at-risk youth.
“Congress passed FOSTA/SESTA in 2018 largely in an attempt to rid the internet of websites like Backpage that allowed ads for sexually oriented personal services. However, its impact on the internet ecosystem was immediate and dramatic,” Lawrence Walters, general counsel for the Woodhull Freedom Foundation, which is leading a lawsuit against SESTA/FOSTA, told me. “Craigslist promptly eliminated all personal ads in direct response to the new law. Reddit shut down numerous subreddits and dozens of websites went dark or moved overseas. The law had no noticeable impact on sex trafficking, however consensual sex work was made much more dangerous,” Walters added.
The lesson in all of this is that Big Tech platforms care a lot more about covering their butts and protecting their bottom line than they do about standing up for the human rights and free expression of marginalized people. And they will do almost anything to avoid a flood of expensive lawsuits, even if it means cracking down on perfectly legal content, or causing direct harm to vulnerable communities.
Faced with the threat of liability for moderation decisions and user-generated content, platforms don’t moderate more thoughtfully or responsibly, they moderate in whatever way their lawyers tell them won’t get them sued. That doesn’t reduce online harms like hate speech, harassment, political censorship, disinformation, human trafficking, and child exploitation—it makes them worse, or sweeps them under the rug.
The lesson of SESTA/FOSTA’s failure has implications far beyond sex work and LGBTQ+ expression. Dozens of racial justice, immigrants rights, civil liberties and press freedom organizations have warned lawmakers about the danger of making rushed changes to Section 230.
“We cannot have a conversation about changing CDA 230 without talking about the impacts on people of color, LGBTQ people, Muslims, sex workers, and others who will suffer those consequences of changes to CDA 230 most acutely,” Kate Ruane, formerly of the ACLU and now of the Wikimedia Foundation, the nonprofit that runs Wikipedia, told me.
Nadim Nashif, executive director of 7amleh, the Arab Center for the Advancement of Social Media, described widespread censorship of Arab and Muslim internet users, often spurred by pressure from the pro-Israel lobby or right wing anti-Arab groups in the US. “If they could sue social media companies for allowing freedom of expression about Palestine, platforms would be even more likely to have policies that violate human rights and digital rights,” he said.
Lawmakers from both parties have often described Section 230 as if it is a magical “get out of jail free card” specially made for Big Tech giants like Facebook, Google, and Amazon. They often fail to mention that Section 230 does not immunize platforms if they knowingly facilitate criminal activity, like sex trafficking or distribution of child abuse material.
Proponents of changing Section 230 also often fail to recognize that removing Section 230 protections does not automatically change platforms’ behavior the way they would like it to change. There is a lot of content that is harmful or distasteful but ultimately protected by the First Amendment, meaning that even if a lawsuit wasn’t dismissed because of Section 230, it would likely fail anyway.
Misleading posts about COVID-19 vaccines, for example, are almost certainly constitutionally protected speech. Creating a carveout in Section 230 for health misinformation, or even for algorithmically amplifying it, wouldn’t change that. All it would do is make lawsuits that are doomed to fail cost a lot more money. Silicon Valley giants can afford the armies of lawyers needed to stave off such an onslaught. But smaller platforms, nonprofits, and decentralized open source alternatives that serve marginalized communities would be easily bankrupted. Republican Sen. Mike Lee raised this concern in a hearing on the EARN IT Act, describing how even a small web forum hosted by a church group could be shut down if they don’t have the resources for compliance.
That’s exactly why Facebook has been aggressively lobbying for changes to Section 230: they know that such changes will only serve to solidify their dominance and monopoly power. Smaller competitors like Discord, Patreon, or Wikipedia would be unlikely to survive.
Big Tech giants’ surveillance capitalist business models are fundamentally incompatible with basic human rights and democracy. The techlash is more than justified. But even many of Big Tech’s most vocal critics agree that urgency should not be used as an excuse to enact regulations that do more harm than good.
During her testimony in front of the House Energy and Commerce Committee, Facebook whistleblower Frances Haugen referred to SESTA/FOSTA and urged lawmakers to be cautious when considering changes to Section 230. “As you consider reforms to Section 230, I encourage you to move forward with eyes open to the consequences of reform,” she said. “Congress has instituted carve outs of Section 230 in recent years. I encourage you to talk to human rights advocates who can help provide context on how the last reform of 230 had dramatic impacts on the safety of some of the most vulnerable people in our society but has been rarely used for its original purpose.”
If lawmakers really want to rein in the monopoly power and abusive practices of the largest tech companies, they should finally pass a strong Federal data privacy law. They should ban surveillance advertising and the type of pervasive data harvesting that drives Big Tech platforms’ harmful algorithms. They should pass antitrust reform bills like the American Innovation and Internet Choice Act and the Open App Markets Act. They should call on the Federal Trade Commission (FTC) to crack down on deceptive business practices, including privacy violations and discriminatory automated decision-making systems.
Once they’ve done all that, if they still believe that changes to Section 230 are necessary, they should first do their due diligence and pass the SAFE SEX Worker Study Act to avoid repeating the deadly mistakes of the past.
