Backpage Seized But Don’t Overlook the Threat: SESTA/FOSTA Makes None Safe by Silencing Internet Users


So, what’s the big deal? From EFF, “SESTA/FOSTA undermines Section 230, the most important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It’s likely that many of today’s online platforms would never have formed or received the investment they needed to grow and scale—the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections, noncommercial platforms like Wikipedia and the Internet Archive likely wouldn’t have been founded given the high level of legal risk involved with hosting third-party content.

Immunity compromised. “Importantly, Section 230 does not shield platforms from liability under federal criminal law. Section 230 also doesn’t shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when a platform directly contributed to unlawful speech. Section 230 strikes a careful balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.

The SESTA siesta. SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users’ sex trafficking activities. The platform liability created by new Section 230 carve outs applies retroactively—meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns [.pdf] about this violating the Constitution’s Ex Post Facto Clause, at least for the criminal provisions.”

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