Throwing More Regulations at the Internet Won’t Make it 'SAFE'
So far, in 2021, there have been 17 bills introduced in Congress aimed at significantly changing Section 230 of the Communications Decency Act. Just last week, the House introduced five bills aimed at reforming antitrust laws in the country in response to their perceived monopolies held by technology companies. Many of the bills are littered with issues, and if legislation like the SAFE Tech Act or the ACCESS Act were to pass into law, it could have serious unintended consequences — especially for those without much of a voice.
The SAFE Tech Act was introduced by Senators Mark Warner, Mazie Hirono, and Amy Klobuchar in February. The intention of the legislation is to further limit the scope of Section 230 when dealing with ads and civil rights, and also opens the floodgates of liability for tech companies to be sued. The legislation would allow the families of alleged victims to bring lawsuits against platforms, if it can be proved that the platform hosted content that led to loss of life. The legislation also opens up platforms to be sued not just by Americans, but by foreign entities in US courts too. The ACCESS Act, while primarily focused on antitrust efforts more broadly, also mandates data portability and interoperability on platforms.
In the cases of both pieces of legislation, Congress has put so much focus on Big Tech platforms that it’s fair to wonder if they’ve thoroughly examined the unintended consequences the legislation could have on other groups that operate in the digital space. With all the spotlight put upon massive companies like Google, Facebook, Apple, and Amazon, it’s easy to forget that the legislation often can and does apply well beyond those actors — and it can have a disproportionate effect on smaller, more vulnerable groups.
For example, sex workers stand to lose should these pieces of legislation come to pass. They’ve seen firsthand how reforms targeting the digital world can impact their industry. This isn’t the first time they’ve had this fight, either. They spoke out against FOSTA-SESTA when that legislation was being considered by Congress in the name of fighting sex trafficking. Since being passed in 2018, the law has been nothing short of a dismal failure. Additionally, due to their diminished ability to advertise online out of fear of liability for platforms, many sex workers were exposed to more dangerous working conditions since they lost the protection of vetting customers online first, forcing them to the outside world looking for work. Furthermore, the legislation had a chilling effect on sex workers’ First Amendment rights by limiting their ability to express themselves in the digital space.
Despite some supporters claiming that the FOSTA-SESTA carveout to Section 230 was “not a big deal,” a recent GAO report begs to differ. In the report, it explains how law enforcement is having a harder time combatting sex trafficking online as they’ve increasingly shifted their operations overseas. To add insult to injury, FOSTA-SESTA has barely been used by law enforcement agencies. In the three years since its passage, only once has the law been invoked by authorities, who’ve opted to use other existing criminal law to go after platforms (where Section 230 does not apply).
When looking at legislation like the SAFE Tech Act and the ACCESS Act, it’s easy to understand why sex workers are concerned. If a company has to choose between hosting potentially liable content and speech or not, they will almost always opt to not take on that risk, and understandably so. In that scenario, sex workers will undoubtedly suffer, and make it that much harder to provide for themselves or their families.
If a company has to comply with requests from users to take down content from their website so they can transfer it elsewhere under the ACCESS Act, it could inadvertently lead to a notice and takedown regime more abused than the DMCA. The headaches that would come with the endless waves of frivolous lawsuits would have trial lawyers drooling at the opportunity for money.
Exploitation, discrimination, sex trafficking, and data portability are all important policy topics. Whenever a loss of life occurs, it’s a tragic experience for that family — one that words can’t possibly explain. However, it’s crucial when discussing policy — especially policy that is targeting the internet and the digital realm — to be as inclusive of as many voices as possible. That means both large groups and underrepresented communities.
Regardless of how members of Congress might feel about sex workers, it doesn’t change the fact that they exist. It is a multibillion-dollar industry. Sex workers have suffered enough as a result of the ill-informed policy of FOSTA-SESTA, and their voices should be heard in these policy conversations that have a direct impact on their livelihoods.
James Czerniawski is a Senior Contributor with Young Voices. His work has been featured in U.S. News and World Report, Morning Consult, The Salt Lake Tribune, and more. Follow him on Twitter @JamesCz19.