Silicon Valley’s free ride in Washington is over. A series of articles last week illustrated the growing political scrutiny of tech giants, from Republicans and Democrats alike. “The new corporate leviathans that used to be seen as bright new avatars of American innovation are increasingly portrayed as sinister new centers of unaccountable power, a transformation likely to have major consequences for the industry and for American politics,” Ben Smith wrote at BuzzFeed. “Nationalists, accurately, see a consolidation of power over speech and ideas by social liberals and globalists; the left, accurately, sees consolidated corporate power.”
People of all political stripes now argue for regulation that treats these companies as public utilities, like the telephone industry, or for stronger antitrust regulation—that is, to break up these giants. The first real legislative test amid this more hostile atmosphere comes Tuesday at a hearing in the Senate Commerce Committee. Tech firms, in particular Google, are being criticized for quietly opposing a bipartisan bill that would let victims of sex trafficking sue websites that facilitate it. The companies contend that, while they oppose sex traffickers like Backpage.com, the bill would create a slippery slope toward limiting or removing all user-generated web content, the lifeblood of sites like YouTube, Twitter, and Facebook.
It’s hard to be coolly rational about heinous crimes like forced prostitution. But on the merits, this bill would have troubling implications for free speech online. As this backlash against Silicon Valley grows, we need to be careful that a desire to constrain tech monopolies doesn’t harm the rest of us.
The Stop Enabling Sex Traffickers Act (SESTA) is a bipartisan bill, authored by Republican Senator Rob Portman but backed by Democrats like Richard Blumenthal and Claire McCaskill. It targets a real problem: websites that advertise sex with minors. Backpage is responsible for nearly three-quarters of all suspected child sex trafficking in the United States, according to a Senate investigation, which concluded that “Backpage has knowingly concealed evidence of criminality by systematically editing its ‘adult’ ads” and that “Backpage knows that it facilitates prostitution and child sex trafficking.”
Backpage has successfully defended itself against lawsuits by invoking Section 230 of the Communications Decency Act, which gives websites legal immunity for content posted by users. For instance, if ISIS posts a recruiting video on YouTube, the site can take the content down. But YouTube cannot be sued by a victim of terrorism or by a family whose son watched an ISIS video and went off to join them. SESTA would make an exception to Section 230 for victims of sex trafficking. If a court finds that a website facilitated this specific crime, it could be held legally responsible.
While Backpage is the target of this bill, Google, which doesn’t accept ads from Backpage, has rallied opposition to it. Stewart Jeffries, the company’s lead lobbyist, urged congressional staffers not to touch Section 230, calling it “one of the foundational statutes for the Internet” and arguing that SESTA would increase legal risk for online platforms that depend on user-generated content. This almost immediately caused a backlash, most notably by New York Times columnist Nick Kristof, who said that “this reflects the tech world’s moral blindness about what’s happening outside its bubble.” Meanwhile, Consumer Watchdog accused Google of manipulating its search algorithm to favor links that take its side in the debate; search engines Bing and Duck Duck Go offer a more balanced array of links.
The tech world does suffer from a certain moral blindness. And if Google is using its search engine to steer public opinion in its favor, it should be penalized for it. But on the merits of SESTA, Google may have a case.
One argument against the bill is that the Justice Department is already equipped to go after sex trafficking websites. The SAVE Act, passed in 2015, made it a federal crime to publish sex ads online that involve trafficking victims. The Justice Department has an active grand jury in Phoenix investigating Backpage, and has prosecuted and shut down two other sites that served prostitution ads. Documents obtained by The Washington Post reportedly show that a contractor for the site “has been aggressively soliciting and creating sex-related ads,” which, if true, would make the Section 230 hurdle irrelevant. And the California attorney general’s office is moving forward with a lawsuit against Backpage for allegedly violating state money laundering statutes.
It’s true that several lawsuits have been tossed out because of Section 230. But Eric Goldman of the Santa Clara University School of Law, who is testifying at Tuesday’s hearing, points out that degrading Section 230 to prevent this defense, instead of using other law enforcement tools, would have wide-ranging impacts for any website that allows third parties to post on it. Whether you believe this argument depends on what you think of the narrow targeting of SESTA, which only adds exclusions to Section 230 based on sex trafficking.
For example, there are prostitution ads on Facebook and Craigslist; if SESTA merely forced those ads off the site, then fine. But since SESTA would allow victims to sue websites over state anti-trafficking laws, we have no idea how wide the scope of the loophole could get. A Facebook or Twitter post instantaneously appears; would these companies have to conduct investigations to ensure that all posts are free of child sex trafficking content before allowing them? This would eliminate the spontaneity of social media, if not end these sites entirely.
Websites already have filters to block offensive or illegal content. Tech firms would understandably grow conservative about what third-party material can pass through their filters. The Stop Online Piracy Act, a proposal to combat copyright infringement in 2012, was also narrowly targeted, but websites argued compellingly that they would have to restrict all third-party postings, including comments, for fear of copyrighted material.
There are effective ways to combat child sex trafficking online that don’t require inhibiting communication on the Internet. The Senate just on Friday passed two anti-trafficking bills targeting the transportation sector, and Goldman highlights over 30 active bills referencing “sex trafficking.” Even under Section 230, individuals are liable for their actions, just not the websites that host them.
Everyone should worry about the power of tech giants. The fact that how we navigate, advertise, and shop online is in the hands of a few large corporations is bad for the economy, society, and democracy. Our personal data shouldn’t be bought and sold, and startups shouldn’t have extreme barriers to challenge the likes of Google and Facebook and Amazon. Instead, we should break up these monopolists.
But how we go after these companies matters. When a charged topic like child sex trafficking enters a political debate, it becomes harder to see the unintended consequences of what appears to be the morally correct position. Taking Backpage’s side is awkward enough for Google; to take the side of both companies is outright distasteful for those of us who oppose both sex trafficking and tech monopolies. But we must be able to draw a distinction between the real social advances of the communication tools of the Internet and the companies that currently dominate those tools. We don’t have to destroy the former in a mad dash to oppose the latter.