There was a shocking moment in this week’s Senate Commerce Committee hearing on the Stop Enabling Sex Traffickers Act (SESTA). Prof. Eric Goldman had just pointed out that members of Congress should consider how the bill might affect hundreds of small Internet startups, not just giant companies like Google and Facebook. Will every startup have the resources to police its users’ activity with the level of scrutiny that the new law would demand of them? “There is a large number of smaller players who don’t have the same kind of infrastructure. And for them, they have to make the choice: can I afford to do the work that you’re hoping they will do?”
Goldman was right: the greatest innovations in Internet services don’t come from Google and Facebook; they come from small, fast-moving startups. SESTA would necessitate a huge investment in staff to filter users’ activity as a company’s user base grows, something that most startups in their early stages simply can’t afford. That would severely hamper anyone’s ability to launch a competitor to the big Internet players—giving users a lot less choice.
Sen. Richard Blumenthal’s stunning response: “I believe that those outliers—and they are outliers—will be successfully prosecuted, civilly and criminally under this law.”
Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet.
Blumenthal is one of 30 cosponsors—and one of the loudest champions—of SESTA, a bill that would threaten online speech by forcing web platforms to police their members’ messages more stringently than ever before. Normally, SESTA’s proponents vastly understate the impact that the bill would have on online communities. But in that unusual moment of candor, Sen. Blumenthal seemed to lay bare his opinions about Internet startups—he thinks of them as unimportant outliers and would prefer that the new law put them out of business.
Let’s make something clear: Google will survive SESTA. Much of the SESTA fight’s media coverage has portrayed it as a battle between Google and Congress, which sadly misses the point. Large Internet companies may have the legal budgets to survive the massive increase in litigation and liability that SESTA would bring. They probably also have the budgets to implement a mix of automated filters and staff censors to comply with the law. Small startups are a different story.
Indeed, lawmakers should ask themselves whether SESTA would unintentionally reinforce large incumbent companies’ advantages. Without the strong protections that allowed today’s large Internet players to rise to prominence, startups would have a strong disincentive to grow. As soon as your user base grows beyond what your staff can directly police, your company becomes a huge liability.
But ultimately, the biggest casualty of SESTA won’t be Google or startups; it will be the people pushed offline.
Many of SESTA’s supporters suggest that it would be easy for web platforms of all sizes to implement automated filtering technologies they can trust to separate legitimate voices from criminal ones. But it’s impossible to do that with anywhere near 100% accuracy. Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet. As EFF Executive Director Cindy Cohn put it, “Again and again, when platforms clamp down on their users’ speech, marginalized voices are the first to disappear.”
The sad irony of SESTA is that while its supporters claim that it will fight sex trafficking, trafficking victims are likely to be among the first people it would silence. And that silence could be deadly. According to Freedom Network USA, the largest network of anti-trafficking advocate organizations in the country (PDF), “Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims.” Congress should think long and hard before passing a bill that would incentivize web platforms to silence those victims.
Internet startups would take the much greater hit from SESTA than large Internet firms would, but ultimately, those most impacted would be users themselves. As online platforms ratcheted up their patrolling of their users’ speech, some voices would begin to disappear from the Internet. Tragically, some of those voices belong to the people most in need of the safety of online communities.
