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2017 Year in Review of Internet Companies’ Protection from Liability for Users’ Sexual Trafficking Content: The Courts Gave but Congress (May) Take (Some) Away

At the beginning of this year, internet companies found strengthened protection from liability for users’ sexual trafficking content thanks to the U.S. Supreme Court’s decision not to review a key First Circuit decision construing the Communications Decency Act (CDA).

By late summer, a bill – the Stop Enabling Sex Traffickers Act (SESTA) – was introduced that aimed to revoke liability protection to websites that facilitate sex trafficking.  Internet companies expressed disdain for the breadth of SESTA.

However, as the end of the year approaches, the internet companies’ trade association has now voiced support for a revised version of SESTA that still provides some protection from liability.

 

The Beginning of 2017 – Protection Preserved by the Courts

As a review from my previous article (see here), the U.S. Supreme Court decided earlier this year not to reconsider the First Circuit’s CDA decision in Jane Doe No. 1 et al v. Backpage.com, LLC, et al.  The CDA, 47 U.S.C. § 230, protected internet companies from being deemed the “publishers or speakers” of their user-generated content.  Classified advertising website Backpage.com invoked the CDA in defending against two women’s allegations that they were sexually exploited and trafficked on the website because of advertisements posted on Backpage’s “Adult Entertainment” section.

The First Circuit held that the CDA’s § 230 safe harbor provision shielded Backpage from liability, thus protecting internet service providers that act as publishers with respect to third-party uploaded content.  The Supreme Court denied certiorari on January 9, 2017.

 

Late Summer 2017 – Potentially Broad Liability for Users’ Sex Trafficking Content

Nearly seven months after the Supreme Court left the Backpage decision undisturbed, Senator Rob Portman and several other senators introduced SESTA on August 1, 2017.  The bill seeks to rewrite the CDA’s § 230 safe harbor provision “to clarify that [the provision] does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sex trafficking”  (emphasis added).

The Internet Association, a trade organization comprised of the world’s leading internet companies, issued a statement the same day condemning SESTA as “overly broad,” creating “a new wave of frivolous and unpredictable actions against legitimate companies,” and imposing “new, substantial liability risks for companies that take proactive measures to prevent trafficking online.”

 

Year End – Potentially Narrowed Liability Leaves Some Protection

On November 3, 2017, SESTA was revised as part of a bipartisan compromise.  The edited SESTA to clarify that a standard for users’ uploaded content requires the internet company to “knowingly assist[..], support[…], or facilitate[e..]” sex trafficking (emphasis added).  Following these edits, the Internet Association announced its support of SESTA in its November 3, 2017 statement issued.  The trade association stated that “[i]mportant changes to SESTA will grant victims the ability to secure the justice they deserve, allow internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem.”

On November 8, 2017, the Senate’s Committee on Commerce, Science, and Transportation unanimously passed SESTA.  SESTA still needs to pass the full Senate and the House of Representatives before being signed into law by President Trump.

As 2018 approaches, internet companies and the broader tech industry should track SESTA as it makes its way through Congress.  Should the bill become legislation, internet companies will need to implement policies aimed at barring users’ uploaded sex trafficking content.

 

Authored by Melonie Wright Jordan