These fears are overblown but at the same time, IP lawyers and trade groups like the MPAA and RIAA have a long history of aggressive legal actions and long-term strategizing to achieve their goals. Not all of it has been above board.
Unfortunately, the huge lack of trust between two warring sides and America's tendency to live in the extremes has led to wild and angry claims and counter-claims about what SESTA-FOSTA will mean: almost all of which is theoretical.
CDT claims that the legislation will actually increase the amount of sex trafficking ads online under the logic that website operators won't search for such ads themselves out of fear that they will open themselves up to greater liability.
In that respect, CDT prefers the House version of the bill in one respect – it uses a criminal intent standard to decide whether a website should be liable for prostitution ads.
Adding to this giant goat rodeo is the fact that several tech companies broke ranks and started actively supporting SESTA-FOSTA. Most bafflingly, Oracle got involved for reasons that people are still unsure about although the most plausible explanation is that it wanted to hurt Google.
Things then got even weirder when the executive director of the National Center on Sexual Exploitation (NCSE) went on an all-out assault of Google, linking its opposition to SESTA to its issues over hiring more women and minorities (yes, that berk James Damore).
"If Google really wanted to empower women, it would stop obstructing legislation that would decrease sex trafficking online. At the end of the day, it doesn't matter if Google is hiring women if they are also lobbying to keep women enslaved on websites like Backpage.com because they're afraid of losing money," said Dawn Hawkins for god-knows-what reason.
Head meet desk
In short, it has been yet another policy decision that has turned into screaming ball of nonsense. And, of course, that has resulted in some bad drafting thanks to being rushed through committees.
Then there is the not-insignificant matter of whether the law applies from the moment it is passed or acts retroactively. Then, critically, a key word – facilitating – has not been well defined, adding an unnecessary and problematic degree of uncertainty into the law. The bill as currently drafted has also been criticized by the Department of Justice for being too broad.
In short, there are problems and it doesn't help that everyone is yelling and accusing the other side of nefarious deeds rather than sitting down and walking through the issue.
The reality however is that now Google and Facebook have signaled they will not use their lobbying powers to oppose a change to Section 230, it is a done deal.
And that may not be a bad thing if people use this as an opportunity to work on more precise wording that achieves what everyone wants: an end – or, more realistically, a reduction - to online sex trafficking without undermining the tremendous value that Section 230 serves in protecting online platforms.
Don't hold your breath. ®