Section 230 Author Calls SESTA-FOSTA a Cautionary Tale of the Dangers of Altering Intermediary Liability Shield

December 15, 2020 — At a moment in which many are calling for the repeal or revision of Section 230 of the Communications Decency Act, from President Donald Trump to Senate Judiciary Committee Chairman Lindsey Graham to President-elect Joe Biden (by some statements), the Electric Frontier Foundation hosted a virtual conversation with one of the law’s authors to warn of the dangers from altering it.

“SESTA-FOSTA should be a cautionary tale for those in favor of repealing Section 230,” said Sen. Ron Wyden, D-Oregon, during the conversation on Thursday.

He was referencing the Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act that became the package law SESTA-FOSTA, with their enactment on April 11, 2018.

The law amends Section 230 safe harbors, which make online services immune from civil liability for the actions of their users, to exclude enforcement of federal or state sex trafficking laws from its immunity.

In a 2017 statement warning about SESTA, Wyden stated, “I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favor big tech companies at the expense of startups and that it will stifle innovation.”

The bill did just that, as it caused small platforms to buckle under new liability regulations. “SESTA caused so much collateral damage,” said Corynne McSherry, legal director at EFF. “It caused people to over-censor and silence themselves. Any site at risk of liabilities shut themselves down voluntarily.”

In response to the bill’s passing, Craigslist ceased offering its “Personals” section within all U.S. domains, stating “Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services.”

The dating website Pounced.org voluntarily shut down, citing increased liability under the bill, and the difficulty of monitoring all the listings on the site for a small organization.

Screenshot of Sen. Ron Wyden during the EFF webcast

“Right after SESTA passed a bunch of dating sites went out of business,” said McSherry. “Guess who started their own dating site — Facebook. Small businesses couldn’t afford lawyers, like they could,” she said, referencing the strain SESTA-FOSTA specifically put on up-and-coming platforms.

The effectiveness of the bill has further come into question as it has purportedly been ineffective in catching and stopping sex traffickers.

“Sex trafficking moved to the deep web” as a result, said Wyden. “Rather than remove ‘scum’ online, the law pushed it farther, splintering the internet more. It makes content moderation impossible, by driving everything to the dark web.”

“The EARN It Act is the predecessor of SESTA-FOSTA,” said Wyden, referencing Senator Graham’s recent attempt to revise Section 230. “Its going to sound good, but monsters will be flourishing underneath.”

“If you want to alter Section 230, ask yourself: Is the change going to get in the way of constitutionally protected speech? And, is it going to discourage content moderation?,” said Wyden, adding that every proposal he has seen has done one of these.

Wyden proposed looking into the effects of SESTA-FOSTA before the government messes around with Section 230 any further.