November 10, 2017

CUA Law Professor Mary Leary was quoted in a NextGov November 8 article entitled "Senate Passes Anti-Sex Trafficking Bill with Newfound Tech Industry Support" See below.

Senate Passes Anti-Sex Trafficking Bill with Newfound Tech Industry Support

From: NextGov
Date: November 8, 2017
By: Jack Corrigan

After months of heated debate that pitted human rights groups against free speech advocates and the tech industry, the Senate Commerce Committee on Wednesday unanimously approved bipartisan legislation that would arm prosecutors with more legal tools to fight online sex trafficking.

The Stop Enabling Sex Traffickers Act moves on for a Senate vote after a number of major tech companies who originally criticized the bill for being too broad reversed their position last week.

"This is a momentous day in our fight to hold online sex traffickers accountable and help give trafficking survivors the justice they deserve," said Sen. Rob Portman, R-Ohio, who introduced SESTA, in a statement. The bill has garnered support from both sides of the aisle, with 23 initial co-sponsors and an additional 20 signing on since early August.

The bill would amend Section 230 of the Communications Decency Act of 1996, a piece of legislation that prevents websites from being held legally liable for content generated by users. As it stands, Section 230 immunity doesn't apply in federal criminal cases, but SESTA would eliminate immunity in state criminal and civil lawsuits. Doing so would allow groups other than Justice Department to go after any party with "knowing conduct" that facilitates sex trafficking.

The Internet Association, which represents Google, Facebook, Amazon and tech giants, initially came out against the bill, claiming it would be impossible for companies to police the enormous amount of content on their sites and open the door for frivolous lawsuits. The group reversed its position last Friday after the committee narrowed some of the language defining legal liability, but some believe the about-face had more to do with politics than any substantive changes to the bill.

Once lawmakers scheduled the committee vote, its opponents lost a lot of leverage, said Eric Goldman, a law professor at Santa Clara University. They knew the bill would pass and they wouldn't have the opportunity to continue "chipping away" at its framework, he said.

"The reality is the Internet Association's opposition to SESTA … makes it look like the internet community is in favor of sex trafficking" even though it isn't, Goldman said. "Flipping on the bill gave it the ability to stop the hemorrhaging of the community's reputation."

Throwing in the towel on the fight against SESTA also frees up resources for tech groups to use to fight issues that impact them like regulations for online political ads, which cut "straight to the heart of their economic engine," said Goldman.

It's also not a coincidence that the Internet Association reversed its position after Facebook, Google and Twitter have gotten wrapped up in the congressional investigation into Russian meddling in the 2016 election, said Mary Leary, law professor at the Catholic University of America.

Tech companies have enjoyed what she calls "nearly de facto absolute immunity" under Section 230 and remain largely free from government regulation. After coming under fire for Russian election ads on their sites, she said it became clear their "relentless efforts to lobby" Congress to continue that immunity "was coming to an end." Leary argues the current situation follows a historical pattern: budding industries grow with a lack of regulation, then as they mature, government realizes it needs to step in. She believes bills like SESTA can help direct increasingly large role tech companies play in American life.

"It's in their best interest to accept this narrow piece of legislation-it's not a radical end of the internet," she said.