Senator Wicker Introduces Bill To Guarantee The Internet Sucks

from the you-did-what-now? dept

Why does Senator Roger Wicker from Mississippi hate the internet? Wicker, who has a close relationship with big telcos, who have long made it their mission to destroy the open internet, was already a co-sponsor of an awful "Section 230 reform" bill last session, and is back now with what he's ridiculously calling the "PRO-SPEECH" Act. It stands for "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard Act." But, in reality, it is a blatant (and unconstitutional) attack on free speech.

The bill more or less bans any website from doing any moderation. The key part:

An internet platform may not engage in a practice that does any of the following:

(1) Blocks or otherwise prevents a user or entity from accessing any lawful content, application, service, or device that does not interfere with the internet platform's functionality or pose a data privacy or data security risk to a user.

(2) Degrades or impairs the access of a user or entity to lawful internet traffic on the basis of content, application, service, or use of a device that does not interfere with the internet platform's functionality or pose a data privacy or data security risk to a user.

Consider it the all porn and all spam allowed act! Kind of ironic for a Senator who once pushed an unconstitutional ban on selling video games to children. Under this bill, sites couldn't even stop kids from accessing or playing violent or pornographic video games.

There are two exceptions, both of which are silly. One is for "small internet platforms." And the other is... wait for it... if you declare yourself a "publisher" then it no longer applies. Yes, that's right. Senator Wicker is trying to make the ridiculous and nonsensical "publisher/platform" distinction an actual thing, despite the fact that this is blatantly unconstitutional.

Let's just remind everyone how this works: the 1st Amendment includes both the right for any website hosting content to make editorial decisions about what it will and won't include, as well as a right of association to say "I don't want to be associated with that stuff." In this setup, where a site has to declare itself a platform or a publisher, that effectively means taking away the 1st Amendment rights of a platform and turning into a garbage dump of spam and porn. Or... it has to declare itself a "publisher" at which point it faces liability for everything that shows up.

The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumps of spam/abuse/porn/harassment where no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers.

It also throws in this tidbit to make it clear Wicker doesn't want social media sites to kick Nazis off their platforms any more:

An internet platform may not take any action against a user or entity based on racial, sexual, religious, political affiliation, or ethnic grounds.

Thing is, discrimination on racial, sexual, religious, and ethnic grounds is already covered under civil rights laws -- and they're protected classes because they're mostly things inherent to someone, and not choices they make. Your political views and affiliation are different. And, the fact is, there are almost no sites out there (despite what ignorant people are screaming) that do any moderation based on political affiliation. Or, if they do, it's to literally ban the American Nazi Party. But under Wicker's bill, you couldn't ban the American Nazi Party or its members any more.

I wonder why he wants that?

Then there's the "I'm protecting Parler" part of the bill. It says this would be a presumed method of "unfair competition."

Any action taken by a larger internet platform that wholly blocks or prohibits an internet platform that competes with the large internet platform (or any affiliate of the large internet platform) from making use of the large internet platform.

So, this would mean that a platform like Parler could violate every policy it wants of companies like Amazon, Google, and Apple, and they would not be allowed to kick it off for any of those policy violations.

There are also onerous transparency requirements based on the false idea that there is a clear set of rules that every platform uses, rather than an ever-changing and evolving set of policies that is constantly dealing with edge cases.

The whole thing is a stupid wishlist of whiny fake conservatives who want to play the victim and claim they're oppressed for the culture war they're waging. But the end result would be wiping out all the important and useful parts of the internet, and dividing into two piles: all garbage all the time, or the Disney-fied, locked down part. No one should want that.

Which makes you wonder why Wicker does.

Filed Under: 1st amendment, content moderation, moderator's dilemma, platform, pro-speech act, publisher, roger wicker, section 230

New EARN IT Act Creates An Insane New Dilemma: Either Encrypt All Or Spy On All

from the this-seems-counterproductive dept

Last week, as predicted, the Senate Judiciary Committee voted unanimously to replace the original EARN IT Act, with a new one. As part of the markup, they also voted to approve Senator Patrick Leahy's amendment which some might read to say that EARN IT cannot be used to block encryption -- but the reality is a lot more complicated. As I'll explain, this new bill is terrible in a different way than the old bill: it will create a new dilemma in which internet services will either feel compelled to encrypt everything or in which the only way you'll be able to use any internet service is if you hand over a ton of personal information to the service provider -- potentially putting your privacy at extreme risk.

First lets acknowledge an oddity about this new bill. Both bills involve the creation of a commission to come up with "best practices" in trying to stop "child sexual abuse material" or CSAM (the concept formerly known as child porn). In the old bill, if sites didn't follow the commission's best practices, they could lose their Section 230 protections. This resulted in fears that the commission would outlaw encryption as a "best practice." The new bill retains the commission, but for no recognizable purpose. Instead, it does away with the pretense and just says that a bunch of sites should lose Section 230 protections no matter what. It seems quite odd to first say "we need a commission to determine best practices" and then on a second pass say that before the commission has done anything we're just going to make massive changes to Section 230 based on... nothing at all. No evidence saying that this would create better outcomes. No evidence that Section 230 is a problem with regards to CSAM. Just... nothing.

Specifically, the new bill makes a change to Section 230 that looks similar to the change that was made with FOSTA, saying that you don't get 230 protections if you advertise, promote, present, distribute, or solicit CSAM. But here's the thing: CSAM is already a federal crime and all federal crimes are already exempted from Section 230. On top of that, it's not as if there are a bunch of cases anyone can trot out as examples of Section 230 getting in the way of CSAM prosecutions. There's literally no evidence that this is needed or will help -- because it won't.

As we've detailed before, the real scandal in all of this is not that internet companies are facilitating CSAM, but that the DOJ has literally ignored its Congressional mandate to go after those engaged in CSAM production and distribution. Congress tasked the DOJ with tackling CSAM and the DOJ has just not done it. The DOJ was required to compile data and set goals to eliminate CSAM... and has just not done it. That's why it's bizarre that EARN IT is getting all of the attention rather than an alternative bill from Senators Wyden, Gillibrand, Casey and Brown that would tell the DOJ to actually get serious about doing its job with regards to CSAM, rather than blaming everyone else.

But digging into the details, the real problem here is that, as structured, the new EARN IT Act would be a disaster in trying to achieve the goals the sponsors have set out for it. First off, thanks to the addition of Senator Leahy's Amendment, some may see the bill as one that effectively requires encryption to avoid liability for CSAM. Even that's not totally clear, however. While you can read Leahy's amendment to say that encryption is protected, the actual structure of the final bill punts many issues to state law, and that means having to comply with 50 different state laws. Some, like Illinois, have lower standards for the mens rea regarding CSAM, and the worry is that we won't know whether or not offering end-to-end encryption would be seen as violating state laws until long and costly cases go through their lengthy process.

Either way, this weird CSAM carveout from Section 230 is somewhat equivalent to the moderator's dilemma that other attempts to change Section 230 create. Because most of those other reforms put in place a "knowledge" standard, it gives many sites a reason to never look at the content on their platform. In this case, due to the explicit call out saying that encryption isn't impacted, that would effectively say that if you want to keep 230 protections, you should encrypt absolutely everything. Which, ironically, is the exact opposite of what Attorney General Bill Barr has been asking for.

But, as with the moderator's dilemma, there's also a flipside (if you don't want to ignore everything, then you have to greatly restrict what you allow through). Under the new EARN IT, the flipside is that the government more or less says that you are now responsible for being able to track and identify anyone on your service who is not using encryption -- meaning you would need to carefully verify every user of your platform. No more simple signups. No more anonymity. And, incredibly, this would mean that sites would need to collect a ton of data on every user. Want to use this new service? First submit your phone number, driver's license, etc.

At a time when people are saying they trust big internet companies less and less with their data, why would Senators Graham, Blumenthal, Feinstein, and Hawley (HAWLEY!?!?) be encouraging websites to collect even more (and more intrusive) data on all their users?

Since this is somewhat different than the traditional moderator's dilemma, it might be called the "censor's dilemma" or possibly the "middleman's dilemma," in that this is even more tied to the government's demand that websites block certain content entirely, which puts them in the role of a government middleman or censor (which, not coincidentally, would raise serious constitutional issues with the EARN IT Act turning private entities into state censors).

Either way it is difficult to see how these two outcomes are what Congress (or, for that matter, the DOJ) actually wants:

• Much greater encouragement for websites to encrypt everything
• Much greater encouragement for websites to demand much more personal and private information on users.

And yet, thanks to Congress' standard bungling, that's what we have with the current EARN IT Act. And while it might be nice if the law actually did encourage more encryption, don't pin your hopes on that. As noted above, it's not entirely clear that it really does lead to that outcome, and we might not know until after a whole bunch of litigation. Furthermore, if that is is the end result, it will almost certainly lead to a different kind of backlash and support for even worse laws that seek to blow up encryption through other methods.

In short: the EARN IT Act is bad. At best it might encourage more encryption, but it would also create a whole host of unintended consequences, including much less privacy and no more anonymity on many websites. It's difficult to see how that accomplishes any of the goals of the bill's supporters.

Filed Under: censor's dilemma, data, dilemma, earn it, earn it act, encryption, lindsey graham, middleman's dilemma, moderator's dilemma, patrick leahy, privacy, richard blumenthal, verification

The EARN IT Act Creates A New Moderator's Dilemma

from the moderate-perfectly-or-else dept

Last month, a bipartisan group of U.S. senators unveiled the much discussed EARN IT Act, which would require tech platforms to comply with recommended best practices designed to combat the spread of child sexual abuse material (CSAM) or no longer avail themselves of Section 230 protections. While these efforts are commendable, the bill would cause significant problems.

Most notably, the legislation would create a Commission led by the Attorney General with the authority to draw up a list of recommended best practices. Many have rightly explained that AG Barr will likely use this new authority to prohibit end-to-end encryption as a best practice. However, less discussed is the recklessness standard the bill adopts. This bill would drastically reduce free speech online because it eliminates the traditional moderator’s dilemma and instead creates a new one: either comply with the recommended best practices, or open the legal floodgates.

Prior to the passage of the Communications Decency Act in 1996, under common law intermediary liability, platforms could only be held liable if they had knowledge of the infringing content. This meant that if a platform couldn’t survive litigation costs, they could simply choose not to moderate at all. While not always a desirable outcome, this did provide legal certainty for smaller companies and start-ups that they wouldn’t be litigated into bankruptcy. This dilemma was eventually resolved thanks to Section 230 protections, which prevent companies from having to make that choice.

However, the EARN IT Act changes that equation in two key ways. First, it amends Section 230 by allowing civil and state criminal suits against companies who do not adhere to the recommended best practices. Second, for the underlying Federal crime (which Section 230 doesn’t affect), the bill would change the scienter requirement from actual knowledge to recklessness.  What does this mean in practice? Currently, under existing Federal law, platforms must have actual knowledge of CSAM on their service before any legal requirement goes into effect. So if, for example, a user posts material that could be considered CSAM but the platform is not aware of it, then they can’t be guilty of illegally transporting CSAM. Platforms must remove and report content when it is identified to them, but they are not held liable for any and all content on the website. However, a recklessness standard turns this dynamic on its head.

What actions are “reckless” is ultimately up to the jurisdiction, but the model penal code can provide a general idea of what it entails: a person acts recklessly when he or she “consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.” But what’s worse, the bill opens the platform’s actions to civil cases. Federal criminal enforcement normally targets the really bad actors, and companies that comply with reporting requirements will generally be immune from liability. However with these changes, if a user posts material that could potentially be considered CSAM, despite no knowledge on the part of the platform, civil litigants could argue that the moderation and detection practices of the companies, or lack thereof, constituted a conscious disregard of the risk that CSAM will be shared by users.

When the law introduces ambiguity into liability, companies tend to err on the side of caution. In this case, that means the removal of potentially infringing content to ensure they cannot be brought before a court. For example, in the copyright context, a Digital Millennium Copyright Act safe-harbor exists for internet service providers (ISPs) who “reasonably implement” policies for terminating repeat infringers on their service in “appropriate circumstances.” However, courts have refused to apply that safe-harbor when a company didn’t terminate enough subscribers. This uncertainty about whether a safe-harbor applies will undoubtedly lead ISPs to act on more complaints, ensuring they cannot be liable for the infringement. Is it "reckless" for a company not to investigate postings from an IP address if other postings from that IP address were CSAM? What if the IP address belongs to a public library with hundreds of daily users?

This ambiguity will likely force platforms to moderate user content and over-remove legitimate content to ensure they cannot be held liable. Large firms that have the resources to moderate more heavily and that can survive an increase in lawsuits may start to invest the majority of moderation resources into CSAM out of an abundance of caution. As a result, this would leave less resources to target and remove other problematic content such as terrorist recruitment or hate speech. Mid-sized firms may end up over-removing user content that in any way features a child or limit posting to trusted sources, insulating them from potential lawsuits that could cripple the business. And small firms, who likely can’t survive an increase in litigation could ban user content entirely, ensuring nothing on the website hasn’t been posted without vetting. These consequences, and the general burden on the First Amendment, are exactly the type of harms that drove courts to adopt a knowledge standard for online intermediary liability, ensuring that the free flow of information was not unduly limited.

Yet, the EARN IT Act ignores this. Instead, the bill assumes that companies will simply adhere to the best practices and therefore retain Section 230 immunity, avoiding these bad outcomes. After all, who wouldn’t want to comply with best practices? Instead, this could force companies to choose between vital privacy protections like end-to-end encryption or litigation. The fact is there are better ways to combat the spread of CSAM online which don’t require platforms to remove key privacy features for user.

As it stands now, the EARN IT Act solves the moderator’s dilemma by creating a new one: comply, or else.

Jeffrey Westling is a technology and innovation policy fellow at the R Street Institute, a free-market think tank based in Washington, D.C.

Filed Under: attorney general, best practices, cda 230, earn it, earn it act, encryption, moderator's dilemma, recklessness, section 230

SESTA's Sponsors Falsely Claim That Fixing SESTA's Worst Problem Harms Hollywood

from the say-what-now? dept

Earlier today, in discussing a long list of possible fixes for SESTA, we noted that the only one that even has a remote chance (i.e., the only fix that actually has the potential of being considered by the Senate) is Senator Wyden's amendment, which is designed to solve the "moderator's dilemma" issue by clarifying that merely using a filter or doing any sort of moderation for the sake of blocking some content does not automatically append liability to the service provider for content not removed. Senator Portman -- the sponsor of the bill -- has insisted (despite the lack of such language in the bill) that this is how SESTA should be interpreted. Specifically, Portman stated that SESTA:

...does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.

Except, that's not what the bill actually says. Which is why the language in the Wyden amendment is so important. It basically adds into the law what Portman pretends is already there.

Thus, you would think that Portman and the other Senators backing SESTA should also support the Wyden amendment. They do not. Senator Richard Blumenthal -- who has spent years attacking the internet, and who has already stated that if SESTA kills small internet businesses he would consider that a good thing -- is opposed to the amendment, and sent out a letter supposedly co-signed by other SESTA supporters:

Senators Blumenthal, McCaskill and the other bipartisan sponsors of SESTA oppose the Wyden amendments. These amendments threaten to derail the bill and they would make it even more difficult than current law to hold websites that sexually traffic minors like Backpage.com accountable….The safe harbor amendment would provide websites like Backpage.com with even stronger legal protections than they enjoy today. It also has the potential to disrupt other areas of the law, such as copyright protections. This “bad Samaritan” amendment is not a clarification or a protection for good actors–it is an additional tool to protect traffickers and illegal conduct online.

Here's the problem with that. Almost everything stated above is 100% factually wrong. And not just a little bit wrong. It's so wrong that it raises serious questions about whether Blumenthal understands some fairly fundamental issues in the bill he's backing. Professor Eric Goldman has a pretty concise explanation of everything that's wrong with the statement, noting that it -- somewhat incredibly -- shows that SESTA's main sponsors don't even understand the very basic aspects of CDA 230, as they insist on changing the law.

There are at least three obvious problems with this email. First, the amendment would indeed protect good actors because it would eliminate the Moderator’s Dilemma. The authors of this email still don’t understand, or have decided to ignore, the Moderator’s Dilemma. Second, the proposed amendment would not help Backpage–at all. The Senate Investigative Committee report highlighted voluminous facts about Backpage’s knowledge, so I can’t see how Backpage’s purported filtering would come up in any SESTA/FOSTA enforcement.

Third, the email indicates that the amendment “has the potential to disrupt other areas of the law, such as copyright protections.” This is where the screen freezes, the record scratches, and the narrator says in a deadpan, “No, it wouldn’t.” Section 230(e)(2) expressly carves out “intellectual property” claims–including copyright–from Section 230’s coverage. Anyone with even a basic understanding of Section 230 knows this. Yet, the sponsors, on the eve of a decisive vote with monumental stakes for Section 230, appear to be demonstrating a fundamental misunderstanding of what Section 230 says and does. That is very, very confidence-rattling.

Worse, the email has it precisely backwards. The amendment would HELP, not DISRUPT, copyright protection efforts. If services stuck in the Moderator’s Dilemma decide to turn off proactive moderation efforts, that will include turning off copyright filtering. In other words, SESTA/FOSTA may have the unwanted consequence of encouraging Internet services to do LESS copyright filtering. (This is just one of many examples of my claim that SESTA/FOSTA may counterproductively increase anti-social content). The amendment would fix that by not holding their copyright filtering efforts against Internet services for sex trafficking or prostitution promotion purposes, i.e., by filtering for copyright, the Internet services won’t fear that a court will ask why their filters missed promotions for sex trafficking or prostitution. So if Congress wants to avoid “disrupting” efforts to combat online copyright infringement, the amendment is essential.

This isn't a matter of differing opinions. This is the main backers of a bill to drastically change CDA 230 insisting that (1) their bill does something it does not and (2) a fix to their bill that would bring it into line with what they claim their bill does... actually does a bunch of things it absolutely does not.

At this point, you have to start wondering what the hell is happening in the Senate, and in particular in Senator Blumenthal's office. He is not just doing a big thing badly -- he is gleefully spouting the exact opposite of basic facts about both the existing law, and the bill he sponsored. I know that politicians aren't exactly known for their honesty, but he seems to be taking this to new levels -- and causing massive harm in the process.

Filed Under: cda 230, claire mccaskill, copyright, fosta, intermediary liability, moderator's dilemma, richard blumenthal, rob portman, ron wyden, sesta

Can SESTA Be Fixed?

from the will-it-be-fixed? dept

It appears that sometime this week (or even possibly today), the Senate is unfortunately likely to vote (perhaps by an overwhelming margin) for SESTA, despite the fact that it's a terribly drafted bill which no one can explain how it will actually stop sex trafficking. Indeed, it's a bill that many victims advocates are warning will not just make problems worse, but will put lives in danger. And that's leaving aside all of the damage it will do to free speech and tons of websites on the internet.

Much of this could have been avoided if anyone in Congress were actually interested in understanding how the internet worked, and how to write a bill that actually addressed problems around sex trafficking -- rather than buying into a false narrative (pushed mainly by Hollywood) that the liability protections of CDA 230 were magically responsible for sex traffickers using the internet. Two academics who are probably the most knowledgeable experts on intermediary liability, Daphne Keller at Stanford and Eric Goldman at Santa Clara University, have each posted thoughts on how to "salvage" SESTA. If Congress were serious, it would listen to them. But that's a big "if."

Let's start with Keller's suggestions that she helpfully put into a Twitter thread:

First up, she takes on the problematic "knowledge" standard used in SESTA/FOSTA. Again, a key part of the bill is that internet sites can become liable if they have "knowledge" of sex trafficking activity that is done on the platform. But what the hell is meant by "knowledge"? In other parts of the law, even when it's more spelled out, there are examples of legal cases lasting years while everyone wrangles over what "knowledge" means. In the copyright context, Viacom sued YouTube and were in court for more than half a decade, with much of that being over the simple question of whether knowledge meant "specific" knowledge or "general" knowledge. SESTA could solve many of its problems if it made its knowledge standard clear -- and, as Keller notes, one that wouldn't require "teams of lawyers."

Indeed, this is perhaps the largest problem with SESTA (and may also doom the bill in court). Prosecutors and the DOJ have already raised concerns about the standards in the bill, and even the politicians supporting it toss out very, very different definitions. Senator Rob Portman has claimed it requires "intent." Meanwhile, Rep. Cathy McMorris Rodgers claims that the standard is "knowingly turning a blind eye." That's... extremely different. Senator Cory Booker claims its "a high standard" that requires "proving beyond a reasonable doubt." All of those mean very different things, and when you have the politicians backing the bill all spouting nonsense, and the law itself doesn't clarify, you're making a huge mess.

Keller's second suggestion is to add in real and meaningful penalties for bad faith accusers as well as an appeals process for the accused. This is also a big deal. Again, looking at the DMCA, we've talked about how the one part of that law dealing with bad faith accusations is basically toothless and almost never useful. And thus, the DMCA is abused all the time. We have all those lessons to learn from -- and it appears that Congress is ignoring them.

Up next would be a clear statement that the law does not require monitoring all speech. Such a mandatory monitoring system would have tremendous First Amendment issues -- but unfortunately it seems likely that some may read the bill to require mandatory filtering (oddly, others will read it as saying you shouldn't use filters at all to avoid knowledge -- and that dichotomy of results should just emphasize how poorly the bill was drafted).

Fourth, Keller suggests making it clear that merely monitoring should not be deemed as knowledge (this could be seen as related to clarifying the knowledge standard as well). On that front, there may be an amendment on the table that could help (see below...).

Fifth: the bills should make it clear that it applies to service providers that are end user facing, rather than further up the stack. Again, here's a lesson that we've learned from takedowns in the copyright space. As Hollywood got more and more upset about various things online it continued to move up the stack beyond services to hosting companies, data centers, registrars and even ICANN itself. We shouldn't allow SESTA to allow for the same nonsense.

Finally, Keller suggests that if we must go through with such a bad bill, there should be some requirements on transparency about the impacts for both tech platforms and government agencies, so that we can look back on the bill and determine what it did -- both good and bad.

Will Congress take any of these steps? It doesn't look like it.

As for Goldman, his post focuses on an amendment that Senator Wyden is offering. Last I heard, it appears that the Senate may actually consider this amendment. And it's an amendment similar to one that Goldman himself suggested -- with a very modest addition to SESTA clarifying the whole question of does "monitoring" equal "knowledge." Specifically the amendment would add the following language:

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal or civil liability of the provider or user for any material that the provider or user has not removed or restricted access to.

As Goldman notes, this one amendment would fix the worst problems of SESTA (while still leaving in place plenty of others). If you at least support making SESTA less horrible, he suggests calling your Senators and letting them know:

If you think this is a meritorious fix to a bad bill, then *immediately* call your Senators (you have 2, remember!) and tell them:

1) You oppose SESTA/FOSTA because it’s not clear the law actually helps sex trafficking victims; and

2) You want your Senator to support Sen. Wyden’s proposed content moderation amendment because it ensures online services will keep being the first line of defense in the fight against sex trafficking.

Note 1: This issue could be moot as early as Monday afternoon, so literally CALL NOW.

Note 2: CALL, not email. The EFF has made it easy for you to do.

It seems quite likely the bill is going to pass very soon and then get signed into law. The fact that there are simple and reasonable ways to improve on the bill, which Congress is blatantly ignoring, is problematic.

Filed Under: cda 230, daphne keller, eric goldman, fosta, intermediary liability, knowledge, knowledge standard, moderator's dilemma, rob portman, ron wyden, sesta

Just As Everyone's Starting To Worry About 'Deepfake' Porn Videos, SESTA Will Make The Problem Worse

from the what-is-congress-thinking? dept

Over the last few months, if you haven't been hiding under a tech news rock, you've probably heard at least something about growing concerns about so-called "Deepfakes" which are digitally altered videos, usually of famous people edited into porn videos. Last month, Reddit officially had to ban its deepfakes subreddit. And, you can't throw a stone without finding some mainstream media freaking out about the threat of deepfakes. And, yes, politicians are getting into the game, warning that this is going to be used to create fake scandals or influence elections.

But, at the same time, many of the same politicians suddenly concerned about deepfakes are still pushing forward with SESTA. However, as Charles Duan notes, if SESTA becomes law, it will make it much more difficult for platforms to block or filter deepfakes:

Under it, websites that have “knowledge” that some posted material relates to illegal sex-trafficking can be deemed legally responsible for that material. What it means for a website to have “knowledge” remains an open question, especially if the site uses automatic or artificial intelligence systems to review user posts. Therefore, this language opens the door to a potentially wide range of lawsuits and prosecution.

The worst case scenario is that, to avoid having “knowledge” of sex trafficking, Internet services will stop content-moderation entirely. This scenario, which some experts call the “moderator’s dilemma,” would most likely affect smaller websites—including message boards and forums that serve special interests—that can’t afford the advanced filtering systems or armies of content editors that the big sites use. These smaller sites have already faced difficult problems with content moderation, and would be even less likely to spend resources on cleaning up after their users if doing so might lead to a lawsuit.

Duan points out that it goes beyond just the moderator's dilemma aspect of this. Even if sites do decide to moderate, at this point Congress is making it clear that whatever moral panic of the day that excites it may lead to new laws demanding action. But if they're desperately chasing the last problem, they have even less time to deal with the new one.

One of the good things about CDA 230, is that it actually allows platforms to experiment and try out different ways of moderating content. If they fail (as they often do!), they hear about it from their users, or the press, or from politicians. In short, they're allowed to experiment, but have incentives to try to find the right balance. But if Congress is enacting carve-outs that make any failure to properly filter a crime, then it becomes almost impossible, and the incentive is just to avoid doing anything at all. That's not at all healthy.

Filed Under: cda 230, deep fakes, deepfakes, moderator's dilemma, porn, sesta

Can Someone Explain How SESTA Will Stop Sex Trafficking?

from the questions,-questions dept

Last week I got into a bit of a debate with a SESTA supporter about the bill, which boiled down to me saying that the bill won't do what it claims, will likely make things worse for victims of sex-trafficking, and will also have massive consequences for the internet and speech online. And the response from the person I was debating was "but my side has all these anti-sex-trafficking groups supporting SESTA." That's not exactly a response to any of the points that I raised. As we've noted from the very start, we may not be experts in sex-trafficking, but we do know how the internet works -- and how laws on intermediary liability impact the internet and content online. And nothing in SESTA will work the way its supporters seem to think it will work.

So I want to directly ask here the same questions I asked the individual I was debating (which he refused to answer before tossing out a few ad hominems and suggesting that I'm not worth talking to because I'm "a blogger."): what in SESTA will actually stop or limit sex-trafficking? Because as far as I can tell, it does absolutely nothing to stop sex-trafficking. It does not target sex-traffickers in any way. Supporters of the bill claim or appear to believe that it will stop sex-trafficking by stopping websites from allowing anyone to engage in sex-trafficking or advertising sex-trafficking victims on their websites. But that's not at all how the bill works.

It's (obviously!) already illegal to engage in sex-trafficking. And it's already illegal to advertise sex-trafficking. And law enforcement can already go after those doing both of those things. And yet, miraculously, both of those things still occur frequently online. Now, a reasonable response to this would be to suggest that law enforcement has a good source of information with which to investigate, arrest, and prosecute sex traffickers, since the necessary information is apparently so easily obtained online.

So, what does SESTA do? Rather than make it easier for law enforcement to go after those illegal activities, it creates a new illegal activity: that of running a website that is used by sex traffickers. So, as we've discussed before, this creates a serious "moderator's dilemma" for websites, leading to one of two likely outcomes. Many websites may stop moderating content, because if they're not looking at the content, they can more credibly claim a lack of knowledge. That means less moderation, less oversight, and likely more use of those platforms for sex-trafficking ads. So, suddenly, sex-traffickers will gravitate to those platforms, and those platforms will be less likely to cooperate with law enforcement because (again) they want to avoid "knowledge" of how their platform is being used, and working with law enforcement risks more knowledge.

On the flip-side of the moderator's dilemma, you will get sites that much more vigorously moderate content. This seems to be the solution that SESTA supports think all platforms will embrace -- which is almost certainly incorrect. Indeed, it's incorrect on multiple levels, because not only will some platforms embrace this more heavy moderation setup, those that do will almost certainly over-moderate to a drastic degree, in order to avoid liability. That will mean fairly aggressive levels of keyword blocking, filters, and automated removals. And, as anyone who has studied how such systems work in the real world, all of those will fail. And they'll fail with both false negatives and false positives. That is, lots of perfectly legitimate content will get taken down (perhaps, as we've discussed before, it could be material to help victims of sex-trafficking), and lots of sex-trafficking content will still get through.

It's that latter point that's pretty important: the people engaged in sex-trafficking are already breaking the law. SESTA changes nothing for them in terms of the illegality of what they're doing. It just means the tools they use are going to change a little bit, and anyone who thinks the traffickers won't adjust with it has apparently never spent any time on the internet. If keywords get blocked, traffickers will come up with new euphemisms (they always do). If forums get shut down, they will gravitate to other forums. If filters are created, they will figure out ways to get around the filters. Nothing in SESTA creates any disincentives at all for actual traffickers.

Indeed, SESTA creates a few things that will make life easier for traffickers. As noted above, it will likely lead some sites to do less moderation, and traffickers will quickly gravitate to such sites. Additionally, it will make it much, much harder for rights groups to post information to help victims of sex-trafficking, since much of that information will be seen as a liability risk, and blocked or taken down. And, finally, it will create massive disincentives for sites to work with law enforcement or families of victims to help them, because of the risk of those actions being used to prove the requisite "knowledge."

So, please: can someone who is a supporter of SESTA explain how the bill will do anything to actually stop sex trafficking? Because I can't find a single useful thing that it does.

Filed Under: intermediary liability, moderator's dilemma, sesta, sex trafficking