How The Internet Association's Support For SESTA Just Hurt Facebook And Its Users

The Internet Association's support for SESTA is truly bizarre. Should its support cause the bill to pass it will be damaging to every one of its members. Perhaps some members feel otherwise, but it is hopelessly naive for any of them to believe that they will have the resources to stave off all the potential liability, including criminal liability, SESTA invites to their companies generally and to their management teams specifically, or that they will be able to deploy these resources in a way that won't destroy their user communities by over-censoring the creativity and expression they are in the business of providing forums for.

But that's only part of the problem, because what no one seems to be remembering is that Section 230 does not just protect the Internet Association's platform members (and their management teams) from crippling liability; it also protects its platform members' users, and if SESTA passes that protection will be gone.

Naturally, Section 230 does not insulate users from liability in the things they themselves use the platforms to communicate. It never has. That's part of the essential futility of SESTA, because it is trying to solve a problem that was not a problem. People who publish legally wrongful content have always been subject to liability, even federal criminal liability, and SESTA does not change that.

But what everyone seems to forget is that on certain platforms users are not just users; in their use of these systems, they actually become platforms themselves. Facebook users are a prime example of this dynamic, because when users post status updates that are open for commenting, they become intermediary platforms for all those comments. Just as Facebook provides the space for third-party content in the form of status updates, users who post updates are now providing the space for third parties to provide content in the form of comments. And just as Section 230 protects platforms like Facebook from liability in how people use the space it provides, it equally protects its users for the space that they provide. Without Section 230 they would all be equally unprotected.

True, in theory, SESTA doesn't get rid of Section 230 altogether. It supposedly only introduces the risk of certain types of liability for any company or person dependent on its statutory protection. But as I've noted, the hole SESTA pokes through Section 230's general protection against liability is enormous. Whether SESTA's supporters want to recognize it or not, it so substantially undermines Section 230's essential protective function as to make the statute a virtual nullity.

And it eviscerates it for everyone, corporate platforms and individual people alike - even those very same individual people whose discussion-hosting activity has been what's made platforms like Facebook so popular. While every single platform, regardless of whether it is a current member of Internet Association, an unaffiliated or smaller platform, or a platform that has yet to be invented, will be harmed by SESTA, the particular character of Facebook, as a platform hosting the platforms of individual users, means it will be hit extra hard. It suddenly becomes substantially more difficult to maintain these sorts of dynamic user communities when a key law enabling those user communities is now taken away, because in its absence it becomes significantly more risky for any individual user to continue to host this conversation on the material they post. Regardless of whether that material is political commentary, silly memes, vacation pictures, or anything else people enjoy sharing with other people, without Section 230's critical protection insulating them from liability in whatever these other people should happen to say about it, there are no comments that these users will be able to confidently allow on their posts without fear of an unexpectedly harsh consequence should they let the wrong ones remain.