Stop Enabling Sex Traffickers Act, S. 1693, 115th Cong. (2017).
On August 1, 2017, Senator Rob Portman (R-OH) introduced the Stop Enabling Sex Traffickers Act (“SESTA”). On September 19, 2017, The Senate Committee on Commerce, Science, and Transportation held a hearing on SESTA.
The stated purpose of the bill is to amend the Communications Decency Act of 1934, 47 U.S.C. §230, to clarify that Section 230 immunity does not proscribe federal or state prosecution of websites facing sex-trafficking charges. SESTA would exempt “sex trafficking of children” and “sex trafficking by force” from the section. The bill also defines the term “participation in a venture” as “knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation.” SESTA, if enacted, would apply to all germane conduct alleged to have occurred before, on, or after the date of enactment.
During the hearing, Senator Portman testified that Section 230 as it stands protects websites that facilitate the advertisement of unlawful sex acts with sex trafficking victims. He specifically discussed the website Backpage, which was accused of facilitating sex trafficking but was shielded from liability over third-party content. Indeed, victims have repeatedly filed suit against websites advertising services such as prostitution and sex trafficking to no avail. Just last month, a Sacramento Judge dismissed pimping charges against Backpage, citing their immunity under Section 230. At the September 19th Senate Hearing , Yvonne Ambrose tearfully testified about the rape and murder of her 16-year old daughter who was sold on Backpage.
Despite strong bipartisan support for SESTA in the Senate, there has been some resistance to the bill. Major tech companies have been lobbying aggressively against SESTA in favor of a more narrowly-drawn and targeted bill to crack down on sex trafficking. The Electronic Frontier Foundation maintains that Section 230 of the Communications Decency Act played an integral role in the protection of speech on the Internet. They argue that SESTA has fundamental flaws and would stifle the growth of small businesses that lack the resources to defend against lawsuits. The Internet Association, which represents global internet companies, is concerned that the broad scope of the bill would weaken online liability protections and undermine free speech. They are concerned about the potential increase in frivolous lawsuits and novel criminal and civil liabilities for internet intermediaries that host third-party speech.
The ACLU also delineated a number of these concerns in a coalition letter to Senate leadership. Senator Ron Wyden (D-Ore.), one of the original sponsors of Section 230, has been an outspoken opponent of the bill. Proponents of the bill, however, such as Bill Nelson (D-Fla.), have disputed these arguments and maintained that SESTA does not significantly undermine free speech.
Daren Zhang is a 1L student at Harvard Law School