Sneaky Hidden Trouble in Bipartisan Bills (FOSTA/SESTA)

Imagine with me a happy, hand-shakey, bipartisan Congress. We're working across party lines, we're passin' bills, and everything's good.

Right now we're so far from that vision that I am almost afraid to malign it, but malign it I shall. 

There is a very particular myth in the US that partisan bills must be bad (unless it's my party's bill), and bipartisan bills must be good. If enough people agree, we really can't go wrong.

In reality, they can frequently go against the will of the American people as a whole. For example, by a margin of nearly 2:1, Americans want to reform the Patriot Act to reduce government surveillance powers. However a strong bipartisan majority (83-14 in the Senate) voted to renew the Patriot Act in 2015, and President Obama signed it into law despite promises to reform it. Exact same story with FISA: Americans oppose it, Congress passed it with large bipartisan support, and Obama signed renewal despite promising to reform it.

Today's sneaky-hidden-trouble-bill is called FOSTA/SESTA, or the "stop Enabling Sex Traffickers Act."

What Is FOSTA/SESTA And Why Is It Trouble?

FOSTA/SESTA seems to have been built with good intentions. The original sponsor of the bill, Senator Rob Portman (OH) was personally involved in fighting sex trafficking (that is, selling sex slaves) on Backpage.com, and had to go through a lot of legal hoops (which took time) to get it done.

The idea of FOSTA/SESTA--or rather the claim behind its sponsors--is that Section 230 of the Communications Decency Act made it too easy for sites to host sex trafficking without consequences. Therefore, what the bill intends to do is pierce the Section 230 veil and allow states & the federal government to hold owners of websites that knowingly (or unknowingly through "recklessness") host sex trafficking transactions legally liable. 

Sounds pretty good. What are the problems?

Non-Trafficking Sites Shutting Down...

In response to increased liability from FOSTA/SESTA, sites are already shutting down that didn't involve sex trafficking directly, due to the increased legal liability that someone might someday somewhere use them for it. Two such examples are Craigslist Personals and the furry personals site Pounced.org. Medium and Google are terminating some users on their cloud services. Microsoft updated its Terms of Service to say that "offensive language" and "inappropriate content" such as nudity may result in a ban. Reddit has shut down subreddits and Google Drive has deleted content on people's storage. A few dozen other sites have shut down.

...And Increased Risk for Consensual Sex Workers

Many of the sites that shut down were used by consensual sex workers to vet clients before meeting them, rather than work the streets. I got to interview a sex worker about the changes they and the industry have been going through (now we're investigative journalists!). What I learned was that using these sex sites for escort work greatly decreased risk of violence on sex workers by their clients--not only because of pre-vetting, but also because of the paper trail left behind that makes it harder to get away with violence.

Since FOSTA/SESTA passed, sex workers have had to move to much riskier methods. Daily Beast outlines some of the details here. My interviewee revealed that they knew of 18 sex workers that have died since FOSTA/SESTA came into effect last month, and 2 are missing, because they met riskier clients in riskier ways.

A Broader Risk to Section 230 and Internet Speech

The point of Section 230 is to not punish website providers if someone uses their service to do something illegal, as long as the website provider didn't intentionally help them do that illegal thing (at which point the website owner is now doing the illegal thing). Wikipedia and other tech companies believe that 230 has been key to preserving free speech on the Internet, as well as simply giving space for websites (such as Wikipedia) to exist at all.

FOSTA/SESTA intentionally erodes Section 230. It also makes website providers liable to federal and state laws, meaning they now have 51 different legal frameworks to look out for. This is of course a pretty big burden for smaller website providers and could be stifling. It also opens up more potential lawsuits against website providers--the EFF points out that "even if these lawsuits are meritless, getting them dismissed demands significant time and resources."

And the Bill May be Unnecessary

Backpage was shut down and its CEO jailed before FOSTA/SESTA passed. Other backpage.com founders & employees are also liable, and the company pleaded guilty to sex trafficking. Senator Portman rightly points out that this took some time, though it has created precedent that should make legal cases easier in the future. It's therefore possible that FOSTA/SESTA won't provide any real additional help for combating sex trafficking, as between 2016 and 2018 the courts repeatedly made it clear that Section 230 does not shield sex trafficking enablement. The base argument behind the bill appears to be invalid.

While some anti-trafficking organizations have advocated for FOSTA/SESTA, others have opposed it--including the US Government's own Council on Sex Trafficking, saying flat-out that it won't protect sex workers from abuse.

Why You Haven't Heard of FOSTA/SESTA

Vox tells us FOSTA/SESTA threatens the future of the internet as we know it!

So why on earth have you not heard of it yet? I suspect there are two problems. If you search for it, you'll find plenty of articles--you're just not reading them. So lack of coverage isn't wholly the issue.

The first is the Chicken Little Problem.

Chicken Little is a certain problem that comes with apocalypse-as-news: as we know, when we keep crying wolf, nobody's listening when the wolf is actually at the door (indeed there are two whole fables for this one problem!). Such apocalyptic reporting about (many things, but in this case) Net Neutrality put vivid images in people's minds of paywalls for your social media, or Ajit Pai personally keeping you from your favorite website (remember?), because repealing Net Neutrality threatened the future of the internet as we knew it! And it's hard to stay outraged over the same thing, especially when you haven't yet felt the pain that was foretold.

Now there are still some good tried-and-true methods for getting people's attention. One is to blame Trump in the headline (HuffPost, VICE, WaPo, The Verge, Jezebel... the usual suspects) for FOSTA/SESTA even though it passed with an outrageously large bipartisan majority in Congress (in the Senate, one Republican and one Democrat voted against it). Say it's a Trump thing--even when it's plainly not--and you'll get 50% of the country pretty riled up and ready to click your article (until you make them numb to that, too). 

But because this is bipartisan, neither party really scores points by complaining about it. It's harder to get deeply-wedged readers to read an article, much less get up in arms, when you don't have your conventional enemy to get pissed off about. And that's the second problem. When we read about Problems, we are also told exactly who is the Villain that we are supposed to Blame for the Problem. It's all very neatly packaged. We get fired up, we share on social media, our author gets clicks and gets paid, advertisers tell you what to buy. Tidy.

This is sortof the opposite of the Wedge problem: typical Wedging gets people really fired up over symbolic issues in order to keep up the fight (and thus support for media/politicians). When there's no wedge, people don't pay attention anymore. They're too distracted.

I know you can't be on top of everything that happens in the world. Just be wary.

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Erik Fogg

We do politics, but we don't do the thinking for you.