Senate Commerce OKs Tweaked Website Liability Bill

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Alexis Kramer

Websites would be held liable for knowingly publishing content designed to enable sex trafficking under legislation approved on a voice vote Nov. 8 by the Senate Commerce, Science and Transportation Committee.

The bill, S. 1693, by Sen. Rob Portman (R-Ohio), would amend Section 230 of the Communications Decency Act—a 21-year-old statute that cloaks websites with broad immunity against liability for the content of others. Section 230 has consistently shielded classified ad site Backpage.com LLC from claims that it facilitates sex trafficking.

“The shady and highly profitable website operators know full well how their sites are being used,” Committee Ranking Member Bill Nelson (D-Fla.) said at the markup. “The bill we are moving forward today will help shut down these despicable websites.”

The committee approved a substitute amendment that makes technical changes to the original language. Sens. John Thune (R-S.D.), Nelson, and Richard Blumenthal (D-Conn.) had introduced the amendment to address concerns from some tech companies that they could be held liable for merely knowing that sex trafficking is present on their sites. The amendment changes the original bill’s language from “knowing conduct that assists, supports, or facilitates” sex trafficking to “knowingly assisting, supporting, or facilitating” such crime.

The bill now moves to the Senate floor. A similar bill in the House, H.R. 1865, by Rep. Ann Wagner (R-Mo.), hasn’t advanced. Wagner said in a Nov. 8 statement emailed to Bloomberg Law that she is working with the House Judiciary Committee to move her bill forward.

Continued Opposition

Some tech trade groups continue to oppose the bill despite the technical changes.

The substitute amendment doesn’t address TechFreedom’s fundamental concerns with the bill, Berin Szóka, president of the Washington-based technology think tank, said in an emailed statement. TechFreedom and other groups have argued that the bill could cause websites to either overly restrict user content or stop policing their sites for fear of knowing about—and subsequently being held liable for—illegal content.

“As drafted, the bill will discourage websites from actively monitoring their sites to help fight trafficking,” Szóka said. “We look forward to helping to fix this flawed bill, either on the Senate floor or in the House, where there seems to be a greater understanding of the careful balance struck in passing Section 230.”

Thune told Bloomberg Law Nov. 8 that the Commerce committee will continue to work with tech companies and their concerns. “At least for the purposes of the committee markup we reached a place, a consensus I think, that helps address some of those concerns but allows the legislation to move forward,” he said after the markup.

Portman spokesman Kevin Smith told Bloomberg Law that the bill’s “strong bipartisan support” speaks for itself.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Full text of the bill as amended at http://src.bna.com/t4c.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Tech & Telecom on Bloomberg Law