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Congress is considering legislation that aims to deter sex trafficking and hold websites accountable for knowingly facilitating these crimes. A number of companies and in-house counsel are lining up in support of the bill, called the Stop Enabling Sex Traffickers Act.

But SESTA, which would amend Section 230 of the Communications Decency Act, will increase censorship and discourage those that host third-party speech from moderating content, according to the bill's opponents, including some in-house attorneys.

The bipartisan bill was a product of a two-year U.S. Senate investigation that found that classified advertising website Backpage.com knowingly facilitated criminal sex trafficking by editing ads to remove certain terms “indicative of criminality,” while leaving the ads online. Backpage, according to the report from the investigation, does not deny its site is used in this way but claimed immunity under Section 230.

In amending Section 230, the resulting legislation aims to ensure Backpage and others are held civilly and/or criminally responsible for knowingly facilitating sex trafficking.

Critics, however—which include the Electronic Frontier Foundation, the American Civil Liberties Union and the Internet Association—say the bill would have unintended consequences.

“SESTA is a horrible and counterproductive bill,” said Josh King, chief legal officer of online legal marketplace Avvo Inc. “It's the equivalent of making Ford and Toyota liable for bank robberies committed using getaway cars.”

King explained that making websites liable for, as indicated in the legislation's text, “knowledge” or “facilitation” of crimes creates a “powerful disincentive” to moderate user content. “This risk of liability—including criminal liability, no less—will make it much harder for smaller companies and startups to do anything related to user-generated content,” he said.

The questions to ask with respect to this regulation are: What's the problem it's attempting to solve and how effective is the regulation at solving that issue without creating a number of ancillary issues, King said. “On all of those accounts, SESTA is just a spectacular failure.”

Google Inc. has similarly expressed concern related to the bill. The company's vice president of public policy, Susan Molinari, has written that Google believes Backpage can and should be criminally prosecuted without an amendment to Section 230.

In a Sept. 7 post on the company's website, Molinari echoed King's point that, for smaller platforms especially, the threat of liability for knowledge of trafficking creates the risk that “they will simply stop looking for it.” She added: “We think it's much better to foster an environment in which all technology companies can continue to clean their platforms and support effective tools for law enforcement and advocacy organizations to find and disrupt these networks.”

Just over four months ago, Google senior vice president and general counsel Kent Walker made clear that the company wouldn't back proposed changes to Section 230 that would allow for holding websites accountable. The subject was raised in a June 7 shareholder meeting, and Walker, who did not respond to request for comment for this article, said that when Congress formed 230 it “was actually striking a blow in favor of the ability of Good Samaritan review by Internet platforms.”

“You don't want to create liability for review of platforms,” he noted. “And we think Congress got that balance right.”

For all the opposition, a number of heavy hitters, from Twenty-First Century Fox Inc. to International Business Machines Corp. and The Walt Disney Co., have come out in support of SESTA.

“[This] legislation will help bring justice to victims and their families and protect vulnerable women and children,” wrote Hewlett Packard Enterprise Co. general counsel John Schultz in a letter of support. Schultz, who is also an executive vice president and corporate secretary at HPE, added that the company believes “the technology sector has a responsibility to help policymakers and law enforcement combat illicit and criminal activity on the internet, especially sex trafficking.”

As for claims that SESTA would serve as a death knell for the internet, Oracle Corp. wrote in endorsing the bill that this is not the reality. “The fact is that technological capabilities that are available today are light years away from those that existed in 1996 [when CDA was enacted],” wrote Kenneth Glueck, senior VP at Oracle. The proposed amendments, if offered to the CDA in 1996, “would have passed the Senate overwhelmingly and the Internet would have enjoyed the same exponential growth and innovation over the past twenty-one years,” according to Glueck.

“[This] legislation does not, as suggested by the bill's opponents, usher the end of the Internet,” he wrote. “If enacted, it will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking.”