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View from Washington: The SESTA Experience

Plans to extend Internet companies' liability over sex trafficking are on hold, but the industry still needs to sort out its content oversight problem.

Sex trafficking has opened up a political division within the US digital economy.

Neither side is arguing in favour of these heinous crimes, nor do they deny that the internet has seen them increase. Rather the issue is what one side sees as the prospect of bad law being enacted, albeit with the very best of intentions, that would do greater harm to those outside technology’s top tier.

Earlier this month, Washington politicians and the largest online players struck a deal over the proposed wording and reach of the SESTA (Stop Enabling Sex Trafficking Act) bill. It then unanimously passed its committee stage but has since been placed on hold by Senator Ron Wyden, a Democrat from Oregon. However, this is probably not the end of the story.

Wyden has sided with the concerns of smaller online companies, not-for-profits such as The Wikimedia Foundation and the broad-based Electronic Frontier Foundation (EFF). Their opposing argument has four main components:

  1. That the oversight liability imposed by SESTA would be too great.
  2. That it makes overly optimistic assumptions about content filtering software.
  3. That it would restrain freedom-of-speech, including that of victims of sex trafficking.
  4. That it has secured support from bigger companies that have the resources to meet its requirements, but those same requirements may hobble competitors.

Wyden’s hold specifically targets that fourth concern.

“I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favour big tech companies at the expense of start-ups and that it will stifle innovation,” he said.

“After 25 years of fighting these battles, I've learned that just because a big technology company says something is good, doesn’t mean its good for the internet or innovation. Most innovation in the digital economy comes from the start-ups and small firms, the same innovators who will be harmed or locked out of the market by this bill.”

In its statement criticising the bill as “deeply flawed”, the EFF had civil liberties and technological concerns: “Some SESTA supporters imagine that compliance with SESTA would be easy – that online platforms would simply need to use automated filters to pinpoint and remove all messages in support of sex trafficking and leave everything else untouched.

“But such filters do not and cannot exist: computers aren’t good at recognising subtlety and context, and with severe penalties at stake, no rational company would trust them to.

“Online platforms would have no choice but to program their filters to err on the side of removal, silencing a lot of innocent voices in the process.”

In a Medium post, Leighanna Mixter, legal fellow with Wikimedia, takes a deep dive into her organisation’s concerns over SESTA. It is worth your time if you want to gather a broader view of what is happening.

Like Wyden, I want to concentrate on the fourth issue, and how it reflects a building dispute between technology’s titans and its emerging or less well-resourced players.

As currently framed, SESTA would amend a critical clause within the 1996 Communications Decency Act. Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

This exemption from liability is seen as fundamental to having enabled and continuing to enable the growth of the internet economy.

It is the clause that has given platforms relative immunity over issues such as online bullying, fake news, and political chicanery as well as sex trafficking – notwithstanding their efforts (or lack of thereof) towards combatting them. Nevertheless, Section 230 can be said to have allowed hundreds of thousands of flowers to bloom by simplifying liability and thereby lowering the bar of economic viability.

With the backing of the titans’ trade lobbyist, The Internet Association (and its membership does read like a Who’s Who of social media and e-commerce), SESTA would insert a requirement into Section 230 for sex trafficking only. It would state that henceforth, as Mixter describes, “participation in a sex trafficking venture occurs when a party, such as a website, is ‘knowingly assisting, supporting, or facilitating’ a sex trafficking crime.”

At first glance, it is hard to see much wrong with this. But get lawyerly and problems emerge.

For example, what if an online company adopts a ‘wise monkey’ strategy by explicitly not looking too hard at what makes it on to its pages, whatever restrictions may be in its terms of service? Is that “knowing”?

Or what if a company applies monitoring, but it is not absolutely perfect? Could perhaps even flagging material to law enforcement expose it to liability?

Your guess is as good as mine, but more to the point, the lawyers aren’t sure either.

There is then the more explicitly commercial aspect. Not only would SESTA require extensive and possibly costly monitoring infrastructure (though some might say that is no bad thing), it also by definition would apply mostly to the ‘smaller corners of the internet.

Sex traffickers do not typically use big social media companies like Facebook or Twitter to commit their crimes. Where they do not build their own platforms on the Dark Web, they prefer to sneak their poison onto lesser-known but perfectly legal ones where there is less policing by the companies and by their honest users.

Also like many clandestine enterprises, the traffickers use an ever-changing set of codes and acronyms to disguise the true content of their posts.

It is easy to see how the cost of compliance with all that could tip many a start-up business plan into the red.

So can this be resolved?

Part of the problem lies in technology’s espousal of Section 230 as holy writ. It is a part of legislation that is more than 20 years old. In that time, it has allowed many internet companies to grow, but at the same time, so has online criminality. Sex trafficking is itself a good case in point.

As noted earlier, traffickers prefer smaller sites, but one of the bigger and more controversial ones they have used is the classified advertising platform Backpage. It has suffered numerous attacks from politicians and even the arrest of senior executives over the presence of sex trafficking ads on its site.

As a result, Backpage is working with one of its formerly most severe critics, the US National Center for Missing and Exploited Children (NCMEC), to block such material. The company says that it is now removing a staggering one million ads every month, from which it extracts about 400 traceable examples to report to the NCMEC, which in turn notifies law enforcement.

Look back two decades and ask yourself whether anyone then could have foreseen the problem with sex trafficking reaching that scale on one site alone by today. Then add back in the prevalence and volume of bullying, trolling and political propaganda.

The obvious conclusion is that Section 230 is no longer ‘fit for purpose’. Rather than tinkering at its edges, it needs a serious review that balances the continuing need to encourage innovation in the internet economy with how we prevent online services being abused.

And, whatever SESTA’s fate, Silicon Valley needs to start thinking along those lines now because the signs in Washington are that several powerful politicians have already begun to do so. Moreover, the process needs to stretch across the industry.

But then there is the question of actually managing problems that have scaled according to a sort of Moore’s Law Plus.

Until now, content review has largely been based on proprietary tools and the human resources that companies are willing to commit. By contrast, there has been little industry-wide collaboration on the development of related technologies or best practices.

The EFF is right that AI/machine learning-based technologies are not up to the task today and that it may always be beyond full automation. However, centralising R&D efforts in the specific realm of software-driven oversight could make these tools more effective more quickly. That would have benefits across the sector and help reverse current damage to its reputation.

Meanwhile, although the EFF, Wikimedia and others raise important points, it is likely that some kind of sex trafficking legislation will be passed eventually, given the nature of the problem and its continued growth.

So a question arises: Wyden has forced Washington’s lawmakers back to the drawing board, so shouldn’t the internet companies take this opportunity to do the same? Should they not seek to set rather than react to the agenda?

The SESTA experience could provide a starting point for the broader collaborations mentioned above. They would also be a sign from the titans that they are not trying to pull up the viability drawbridge, but rather working to preserve as much of the internet’s nurturing character as they can. And anyway, it doesn’t look like there is a single internet company of any size that has mastered the oversight issue alone.

Technology wants to be regulated with a light touch. To achieve that, it needs to demonstrate a willingness to strive more seriously towards maintaining that goal. It needs to make SESTA not a threat but an opportunity. As batty as it may sound, the Valley needs to create its own Better Justice League.

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