Lawmakers should listen to the communities most affected before rushing to change Section 230 again
This op-ed was written by Cathy Reisenwitz, vice president of communications at the San Francisco Sex-Positive Democratic Club. She writes regularly at Sex and the State, a newsletter about power. Connect with Cathy on Facebook, Twitter, Instagram, and OnlyFans.
Big Tech’s haphazard content moderation and abuse of personal data create real harms — enabling surveillance, online stalking, harassment, and revenge porn. The Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms (SAFE TECH) Act, introduced by Democrats last month, is supposed to force platforms to do a better job of moderating content. But as written, the SAFE TECH Act would fail to address harms and risk silencing marginalized communities.
As a female sex worker and frequent recipient of targeted harassment, I’m asking legislators to listen to us, one of the communities who will be most affected by their proposed bill, before inadvertently eroding the remaining protections we have online.
Those protections rest in Section 230 of the Communications Decency Act, which made the modern web as we know it. The beauty of Section 230 is that it allows all websites, regardless of their budget or the size of their legal team, to host user-generated content and implement their own content moderation policies.
The SAFE TECH Act would erode those protections. It would hold companies liable for their users’ behavior. The SAFE TECH Act would force small websites to spend $1 million or more, by one estimate, to prove to courts that users aren’t causing any one of nine new types of broad, ill-defined harm. These include cyberstalking, targeted harassment, civil rights violations, discrimination, and more.
Only the wealthiest, most powerful companies would be able to afford setting their own content moderation policies. Everyone else would run the real risk of being sued into oblivion by wealthy people who don’t like what people are saying about them online.
We have strong evidence the SAFE TECH Act would backfire, because that’s what happened after the last major effort that attacked Section 230: the Stop Enabling Sex Traffickers Act and Fight Online Sex Trafficking Act, commonly referred to as SESTA-FOSTA.
SESTA-FOSTA utterly failed in its stated aims to reduce online sex trafficking, while stripping protections from vulnerable communities online and directly contributing to sex workers’ deaths.
Like SESTA/FOSTA, the SAFE TECH Act would make it easier for those in power to stifle unpopular speech across the web. It would strip away Section 230 protections for any web service that “has accepted payment to make the speech available.”
While many believe the law applies only to paid advertising, it’s written so broadly that it would apply to all content on any platform where money changes hands, including Substack, OnlyFans, Patreon, Bandcamp, Amazon Createspace, Kindle, Gumroad, and Medium. Perhaps most frighteningly, it would also apply to essentially all paid web hosting and even nonprofits or activist groups that sell merch or accept donations.
“This bill doesn’t interfere with free speech,” SAFE TECH Act co-sponsor Sen. Mark Warner said in a press release. In his FAQ on the bill, Warner claims small websites have nothing to fear because they don’t have a lot of money — so why would anyone bother suing them?
But that’s simply untrue. People sue small websites all the time, for a variety of reasons, including with the express intent of shutting them up or shutting them down. After all, billionaire Peter Thiel didn’t sue Gawker because he needed the money. Other examples abound, including Vandersloot v. Mother Jones, Scherick v. Jezebel, and Scottsdale v. The Deal.
The SAFE TECH Act would just make these kinds of lawsuits easier.
Under the SAFE TECH Act, the #MeToo movement would likely have never gotten off the ground. Section 230 helps protect platforms from spurious lawsuits — but under the SAFE TECH Act, most platforms would have to heavily moderate any posts about sexual misconduct to avoid lawsuits from rich, powerful men who want to avoid accountability.
When it comes to how Section 230 carve-outs work out in real life, SESTA-FOSTA is instructive. SESTA was supposed to fight sex trafficking by holding platforms liable for any sex trafficking that happened on their sites. But after it passed, platforms started indiscriminately booting sex workers and sex-related content.
The results were deadly.
Sex workers lost income as the sites we advertised on shut down or kicked us off. “We watched people wind up homeless overnight,” sex trafficking survivor Meg Munoz, who founded a sex worker services organization in Southern California, told Rolling Stone of the law’s impact. As sex workers’ income dwindled from losing the ability to advertise, sex workers started getting desperate and taking clients who seemed dangerous or unstable because we needed the money.
Not only could we not advertise online, but we also could no longer find, negotiate with, or vet clients in advance. SESTA-FOSTA is “forcing me to go back the streets,” a Phoenix-area escort named Melissa told HuffPost. Street-based work is far more dangerous than indoor sex work. We also lost the ability to share safety information with each other. Clients raped and beat sex workers who lost access to bad-date lists and identity verification.
“We are having our blacklists shut down—websites where the sex worker community would post and warn other providers about dangerous clients from robbery, assault, rape, and even murder,” Los Angeles–based escort Kendall said. Outreach organizations reported a spike in missing and dead sex workers after SESTA-FOSTA.
SESTA-FOSTA is “a death sentence for me,” said one sex worker.
“We watched people literally walk back to their pimps, knowing they had lost any bit of autonomy they had,” Munoz told Rolling Stone. “We watched members of our community disappear.”
Outdoor sex workers must also fear police. In 2018, police officers in 35 states could get out of a rape charge by claiming a suspect in their custody consented to sex. And when they’re not raping us, police are seizing our condoms. In many jurisdictions, prosecutors use our condoms as evidence against us.
“Not only do I have to deal with the police, but now I’m forced to deal with tricks that know this bill is in effect,” Melissa told HuffPost. “They are taking full advantage of it by being more aggressive. And unlike being in the safety of my room, I’m in their car. I don’t have the option to leave or kick them out. I’m literally stuck in their car until they are finished with whatever it is they want from me. What [do] you think the chances are that I make it out alive?”
Faced with a choice between going back onto the streets, going back to our pimps, or starving, two sex workers took their own lives within a month of SESTA-FOSTA’s passage.
But it wasn’t just sex workers who were silenced. Platforms purged vast swaths of sex-related content from their servers, including private files and sex education materials, without warning or permission. Reddit banned multiple subreddits. And Microsoft started scanning its services for adult content. Platforms have been more than happy to jeopardize our health and safety to avoid any potential costly lawsuits.
And for all that, SESTA-FOSTA hasn’t reduced the rate of sex trafficking, according to sex workers, advocates, sex trafficking survivors, and even the Department of Justice. It actually makes it more difficult for law enforcement to find and rescue victims.
A bill that was supposed to help the powerless ended up totally failing, while disempowering already marginalized communities along the way. This is exactly what the SAFE TECH Act would do, too.
The SAFE TECH Act would force platforms to choose between heavily moderating their content to be sure it doesn’t upset the powerful or not doing any moderation whatsoever. In this way it might, like SESTA-FOSTA, even end up making it harder for platforms to remove the types of harmful content the bill’s sponsors say they’re trying to address.
For example, it would make it easier for white supremacists and explicitly misogynist content creators to sue platforms for enforcing basic community standards. Even if the white supremacists don’t have a good case, it’s still going to be expensive for platforms to defend themselves.
There’s a reason Congressional Republicans like Sen. Ted Cruz (R-TX) and Sen. Josh Hawley (R-MO) have been attacking Section 230 and misrepresenting what it does. They know eroding Section 230 protections will make it easier to sue websites into platforming their odious views.
Online harassment, stalking, privacy violations, and more are indeed serious problems. However, silencing sex workers and empowering racists isn’t the silver bullet Warner and co-sponsors seem to think it is.
The SAFE TECH Act would likely mean only two types of content see the light of day online: highly polished, inoffensive, pro-corporate professionally produced content and free, antisocial, low-quality, totally unmoderated user-generated content of the 4chan variety. This will mean more harassment, stalking, and bigotry on the net, not less.
Online content moderation is an extremely difficult problem with very high stakes. The status quo is not working for many people. We need to talk about real solutions while admitting that overbroad, sweeping erosions of online freedom of speech won’t solve the problem.
Lawmakers and D.C.-based progressive nonprofits have ignored sex workers’ lived experiences for too long. They ignored our warnings about SESTA/FOSTA. Those of us who managed to survive are still reeling.
We don’t need another well-intended but disastrous law. Before carving out more of Section 230, we need to pass the SAFE SEX Workers Study Act to investigate SESTA-FOSTA’s harms. And lawmakers and D.C.-based nonprofits should actually listen to sex workers and other marginalized communities that this kind of legislation purports to help.