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SESTA attracts criticism for potential impact on internet start-ups

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The bipartisan Stop Enabling Sex Traffickers Act (SESTA) - which would make it illegal for web services to host user-generated content facilitating sex trafficking - has proved divisive, with critics arguing that it could crush small internet companies.

The bill was introduced by Senator Rob Portman in August. Senator Portman, a Republican representing Ohio, had previously led an investigation into Backpage, a controversial classifieds advertising website accused of knowingly facilitating child sex trafficking.

The site was the focus of a recent US study, which demonstrated that the linguistic analysis of adverts on the website could help law enforcement identify human trafficking rings.

Following his investigation, Senator Portman argued that some legal protections offered to web services were inappropriately providing cover for websites assisting sex traffickers in their business.

SESTA would make it illegal to facilitate sex trafficking, knowingly or through negligence, and amend the Communications Decency Act, which renders online services immune from civil liability for their users’ content and actions. This amendment would exclude sex trafficking from the immunity provided by Section 230 of the act.

The bill has attracted support from both Republicans and Democrats in Congress – including Senator John McCain – and according to testimony provided last week, all 50 state attorneys-general have endorsed it.

Supporters of SESTA suggest that websites could avoid facilitating sex trafficking using automated content filtering software to remove potentially criminal material while retaining harmless content.

Despite some high-profile support, SESTA has attracted criticism for its potential to open a floodgate towards internet censorship, its generality, and, more recently, its potential impact on small internet companies. This is yet another episode in the long-running debate over responsibility for troublesome user-generated content on online platforms.

Germany has introduced the legal requirement for internet companies to remove “fake news” and hate speech within 24 hours of the content being uploaded, with the requirement backed up with a maximum of €50 million (£44 million) fines for failing to do so.

SESTA could similarly make web services providers liable for any use of their services that facilitates harmful activity (specifically sex trafficking), unless they actively take steps to prevent this. This place an additional burden on internet companies which host user-generated content.

While large, well-established companies such as Facebook are able to employ teams of dedicated content checkers to remove harmful content, SESTA could have a harsher impact on smaller companies.

During last week’s Senate Commerce Committee Hearing on SESTA, Professor Eric Goldman, a leading expert in Internet Law at Santa Clara University, commented that the impact of SESTA on start-ups, not just “tech giants”, must be considered by legislators.

The Electronic Frontier Foundation (EFF) – which stands for internet freedom and has set up a “Stop SESTA” campaign – wrote in a blog post that these fast-moving start-ups provide the greatest innovations, and the burden of adhering to SESTA could “severely hamper” competition to the “big internet players.”

“Google will survive SESTA […] small start-ups are a different story,” the post says. “Without the strong protection that allowed today’s large Internet players to rise to prominence, start-ups 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.”

Aaron Mackey, attorney for the EFF, told The Washington Examiner that the act could require all service providers to take on a “team of lawyers” to evaluate possible legal scenarios.

The EFF also argued that SESTA could force internet service providers to err on the side of caution, censoring even harmless voices using their services. The group quotes Freedom Network USA, which stated that: “Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade.”

The EFF was joined in its criticism of SESTA by activist Edward Snowden, who wrote in a Tweet that the act would repress free speech online. A leading article in The Economist states that despite its “worthy aim”, the policy is too broad, treating both tech giants and start-ups in the same way, and it would produce a “deluge of lawsuits.”

“In general, big tech firms can afford such programmes, but start-ups may face bankruptcy. Both will want to avoid trouble by erring on the side of safety, curbing free speech”, the article said.

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