The Dangers of the SAFE Tech Act
March 11, 2021
Since 1996, Section 230 of the Communications Decency Act has governed speech online speech. Like any law, Section 230 is imperfect. But as I wrote a few weeks ago, it is, in practice, the “First Amendment of the Internet,” a critical protector of freedom of speech online.
However, since its enactment, Section 230 has been under sustained political attack. In 2017, the legislative pair known as FOSTA–SESTA, was introduced. Critics of FOSTA-SESTA, including the Woodhull Freedom Foundation, have noted that the legislation erroneously conflates consensual sex work with trafficking. Moreover, FOSTA-SESTA does away with liability protections for websites that host speech whenever the state alleges instances of human or sex trafficking. In essence, by eroding Section 230, the legislation puts sex workers’ lives and livelihoods—and more generally, freedom of speech online—in great danger.
While FOSTA-SESTA continues to endanger sex workers and all of us who use the Internet, we don’t need to look back to 2017 to find credible threats to Section 230. In fact, we merely need to turn our attention to February 5, 2021, when U.S. Senators Mark R. Warner (D-VA), Mazie Hirono (D-HI), and Amy Klobuchar (D-MN) announced the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms Act (“SAFE Tech Act”) to, as Senator Warner’s website states, “reform Section 230.”
The SAFE Tech Act doesn’t “reform” Section 230: by significantly diluting its power and scope, the Act imperils its very existence. As Lawrence Avery notes, the Act “would create six new exceptions to Section 230 protections, that is, cases in which an internet provider or platform would indeed be legally liable for third-party content.”
In other words, much like FOSTA-SESTA, the SAFE Tech Act narrows Section 230’s application, and thus narrows the protections it provides. And like FOSTA-SESTA, the Act would directly harm sex workers. Of the six exceptions, Avery posits that one of the most notable “is a provision that would strip protections in cases where, the bill says, ‘the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech.’” This could apply to the many adult websites that accept payment to access content.
The Electronic Frontier Foundation (EFF) argues that the SAFE Tech Act “would not protect users’ rights in a way that is substantially better than current law.” We at the Woodhull Freedom Foundation agree with EFF. We are advocates for sex workers and everyone for whom the Internet is an important space for experiencing sexual freedom. This position led us to file a federal lawsuit against the U.S. District Court for the District of Columbia to challenge FOSTA’s constitutionality, and it leads us to voice our concerns with the SAFE Tech Act. Like FOSTA, the SAFE Tech Act won’t make anyone safer or their freedom of speech online stronger. Instead, it puts us at risk and weakens our freedoms.