A Senate Commerce Committee hearing on SESTA today found considerable consensus that improvements can be made to the controversial bill.
Many critics of SESTA, including Section 230 author Sen. Ron Wyden, have cautioned against a liability system that would undermine a cornerstone of Internet law and return the Internet to the mid-1990s era of content moderation, when online services either (a) aggressively vetted every online communication by third parties, or (b) adopted a “head in the sand” approach and refused to police any content, lest moderators incur liability for missing one needle in the haystack.
In testimony, Section 230 expert and Santa Clara Law Professor Eric Goldman described this problem, which his written submission identified as the “moderation dilemma.” Faced with liability for “missed calls,” smaller Internet intermediaries without the technical capacity to affirmatively police all user activity might simply err on the side of legal certainty, and stop making calls entirely.
Several Senators agreed with Goldman’s worry, reticent to deter proactive policing already underway. Sen. Brian Schatz, for example, said, “The purpose of SESTA is to enable civil and criminal prosecution against bad actors but we obviously want to provide space and not deter proactive actions by good actors that are doing the right thing to mitigate sex trafficking on the platforms…”
Sen. Cory Booker similarly acknowledged there are “a lot of other arguments about not wanting to undermine good actors and what they are doing.”
Sen. Maggie Hassan, a co-sponsor, encouraged conversations on fixes to the bill to go forward, stating “I think we’d all like to hear some specifics on how we can make this law as effective as possible without the unintended consequences that we have heard here today.”
Chmn. John Thune expressed the same view, encouraging Internet companies “to continue to be at the table and to figure out if there’s a way we can resolve what some have acknowledged are perhaps unintended consequences in the current draft of the bill, but get to a place where we can move forward because I think everybody agrees that this is an area we need to provide clarity.”
Concerns about avoiding what Senators alternately referred to as “unintended consequences” or “overly broad” language — and the need to find “consensus resolution” — reflect that stakeholders share a common goal, but disagree on whether the current approach might worsen the problem, by discouraging online services from proactively policing for misconduct.
The hearing also crystallized industry concerns about undermining Section 230 in a worrisome exchange between Prof. Goldman and Sen. Blumenthal (video below). Goldman stated the consensus view that deterring voluntary preventative measures by smaller intermediaries would be a bad outcome. He nevertheless observed that this outcome might occur if such voluntary moderation could be used as evidence of “knowledge” in criminal prosecution of online services. Sen. Blumenthal responded that firms reducing policing efforts to avoid criminal liability under SESTA were “outliers” who “will be successfully prosecuted, civilly and criminally under this law.” While this interpretation of the bill’s broad language may be a minority viewpoint, it underscored the need to clarify language to avoid such a result.