Earlier this month, President Trump signed a bill, FOSTA SESTA, which is meant to make it easier for law enforcement to combat online sex trafficking. However, the implication of the bill is likely to be much broader as it increases websites’ liability for any (illegal) content posted by their users. Because of this, advocates of internet freedom claim that it represents a threat to free speech, as online platforms will be risk-averse and block any transgressive content.
The signed bill entails changes to Section 230 of the 1990s Communications Decency Act. The original bill defines online services as conduits, not publishers, which implies that websites cannot be held responsible for user-generated content (as in the Prodigy lawsuit). As such, it forms the basis of today’s online freedom. While some websites (e.g. 4chan) embraced Section 230 and allowed anything to happen on their fora, it also provided websites the liberty to moderate user-generated content, without taking legal responsibility for the remaining content. The new bill makes an exception for prostitution-related content, and could very well be a slippery slope towards more exemptions and ultimately a less open internet with much more (self-)censorship.
There’s a broader societal debate over the responsibilities of online platforms and the content they harbor (e.g. Facebook or YouTube), but the newly signed bill may not be the right answer. The slippery slope it represents, and the threat of costly lawsuits, could lead to platforms over-censoring their users or refraining from any moderation at all (to maintain that they have no active role in the presented content). Worse perhaps, rising legal costs could present an additional barrier to entry for new and innovative start-up platforms that seek to compete with existing platforms. It’s thus no wonder that several incumbent platforms have supported FOSTA SESTA.
