Today, the Senate passed legislation—the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865)— that would give law enforcement and victims much-needed legal tools to prosecute online traffickers and rogue websites.  SIIA congratulates Congress for its bicameral, bipartisan effort to enable full prosecution of those involved in sex trafficking, but we remain concerned about the potential unintended outcomes of any legislation that limits critical internet speech protections provided under Section 230 of the Communications Decency Act (CDA 230).

CDA 230 enables many platforms and websites work closely with law enforcement, partner with other companies and outside groups to share signals of illegal activity, particularly acts of human trafficking.  It has also become common among large internet platforms to invest in new technologies, such as machine learning, to proactively police and moderate content.  Over decades, CDA 230 has proven effective for enabling this type activity by protecting internet platforms who are good actors.

However, FOSTA creates a new and unclear liability regime that could subject platforms that engage in content moderation to legal liability.  That is, despite these good intentions, such actions could now open platforms and websites to frivolous civil lawsuits, where a new path has been created for trial lawyers to bring suits for quick settlements and fishing expeditions to discover valuable private information.

Congress sought to narrowly target this legislation to human trafficking, and it isn’t likely to deter SIIA members and responsible internet platforms from continuing to invest in content moderation practices and cooperation with law enforcement, safety professionals, and groups like NCMEC, Polaris, and Thorn, where appropriate. Hopefully all internet websites and platforms will unite in the effort to eradicate sex trafficking online. 

But the risks associated with weakened Sec. 230 protections are very real. Going forward, we urge Congress to support Good Samaritan protections related to Sec. 230 to ensure that content moderation practices employed by websites and online platforms are taken into consideration and not used to create liability for illegal online behavior by third parties.

David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy. Follow the SIIA public policy team on Twitter at @SIIAPolicy.