Warren Bill Highlights the Tradeoffs Inherent in Section 230 Reform
Four years after Congress passed an exception to Section 230 of the Communications Decency Act that made it possible to hold websites liable for user-generated content that facilitates sex trafficking, some lawmakers want to examine what the impact has been. In the process, we may learn more about the tradeoffs required to strike a reasonable balance between holding online platforms accountable and protecting venues for user-generated content.
Under the SAFE SEX Workers Study Act, introduced by Sen. Elizabeth Warren (D-Mass.), the U.S. Department of Health and Human Services (HHS) would be directed to assess the unintended health and safety consequences of the legislative package known as FOSTA-SESTA. Critics of the legislation have long noted that, while well-intended (and perhaps not well-designed even to achieve its intended aim), the law may nevertheless harm sex workers who use online platforms to discuss and arrange consensual commercial sexual activity by exposing them to greater risks of violence and financial insecurity.
With the exception of a few counties in Nevada, prostitution is illegal in the United States. Thus, it is working in a black-market industry that must be considered the primary nexus of harms to sex workers and their customers. There can be little doubt that the fundamental illegality of commercial sex work is far and away the largest contributor to its inherent dangers.
But this doesn’t mean that particular legal reforms can’t make the situation worse, of course. While perhaps concerned lawmakers should focus on the question of underlying legality, the Warren bill’s proposed HHS study would examine how FOSTA-SESTA may have exacerbated harms to sex workers and, particularly, to members of those marginalized communities that are disproportionately more likely to engage in sex work.
The SAFE SEX Workers Study Act reflects the view (hardly unknown at the time of FOSTA-SESTA’s passage) that there are potential harms that stem from imposing liability on intermediaries, such as when it leads to the shutdown of platforms that help to facilitate relatively safe transactional sex. Indeed, a few surveys of sex workers suggest that they perceive a more dangerous environment following the law’s passage. While the drafters of FOSTA-SESTA might have intended to help victims of sex trafficking, the legislation may have hurt many of the most vulnerable in the sex trade.
Understanding the extent of the tradeoff between accountability and immunity is central to getting Section 230 right. Debates over Section 230 typically center either on how to make platforms remove hate speech, misinformation, and other disfavored content, or how to prevent those same platforms from censoring certain political speech, particularly that of conservatives. But such discussions fundamentally misunderstand what Section 230 was meant to do, which is to define how best to assign liability for harmful user-generated content online in order to achieve the optimal balance of beneficial expression and injurious content.
Protection from liability for hosting and moderating user-generated content can be crucial to fostering the creation of online platforms and enabling competition among them. But to the extent that the immunity granted by Section 230 allows harms that exceed the benefits of expression, it should be adjusted to deter those harms if doing so can be achieved at sufficiently low cost. The question is finding the right tradeoff between deterring harmful conduct online and raising the costs of potential liability so high that online intermediaries are likely to restrict valuable user-generated content (or not offer it at all).
This is a delicate balance. The FOSTA-SESTA approach that carved out sex-trafficking claims from Section 230 immunity may be especially costly, while providing few benefits. A June 2021 Government Accountability Office report found that there has been no criminal restitution sought or civil damages awarded for sex trafficking under the act (and just one criminal prosecution under it), even as consensual sex work has been chilled by the shuttering of certain platforms in the wake of FOSTA-SESTA.
A better approach than FOSTA-SESTA would be to condition Section 230’s liability protections on platforms demonstrating reasonable behavior. That is to say, an online service provider should have a duty to exercise reasonable discretion in moderating illegal content. Implicit in the idea of “reasonable moderation” is the understanding that platforms will not be able to deal with all bad content. Moreover, the question of whether moderation is reasonable is inherently tied to the degree of harm caused.
While FOSTA-SESTA did remove immunity for platforms in certain circumstances, this exception to Section 230 has served as more of a sledgehammer than a scalpel. For instance, the law doesn’t distinguish between legal sex work and illegal trafficking, in fact, it doesn’t even distinguish between illegal sex work and trafficking. Online platforms responded by taking down all content that looks like it could be related to sex work for fear of liability. The result, according to a recent Columbia Human Rights Law Review article is that “though the exact legal applicability of FOSTA is speculative, it has already had a wide-reaching practical impact; it is clear that even the threat of an expansive reading of these amendments has had a chilling effect on free speech, has created dangerous working conditions for sex-workers, and has made it more difficult for police to find trafficked individuals.”
Section 230 is in need of reform, but there needs to be much more work done to get reform right. The SAFE SEX Workers Act Study may lead to more information on how the costs of a carve-out approach to Section 230 immunity isn’t effective. A better approach aimed at reasonable moderation that takes into consideration the harms and benefits of the content at issue would be a step in the right direction.
Geoffrey Manne is president of the International Center for Law & Economics (ICLE) and Ben Sperry is ICLE’s associate director of legal research.
