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One of Silicon Valley’s concerns in the re-negotiation of NAFTA was in the area of free speech and content regulation, and the final draft turned out to be good news for Big Tech — mostly.

According to the new United States-Mexico-Canada-Agreement (USMCA), tech companies like Facebook and Google will not be liable or prosecutable for any content they host on their sites, even if that content is false or illegal.  There is, however, one exception: the new agreement says the U.S., Mexico and Canada can enact “measures necessary to protect public morals” and hold tech companies liable for content that facilitates sex trafficking, child trafficking and prostitution.

The agreement mimics Section 230 of the Communications Decency Act of 1996, which several libertarian experts have praised for protecting tech companies from liabilities and lawsuits related to the content curated on their sites. The Electronic Frontier Foundation calls the CDA’s Section 230 the “most important law protecting internet speech.”

That protection ends when it comes to sex trafficking. The new USMCA specifically references the U.S.’ amendment to the Communications Act of 1934, passed earlier this year, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (commonly referred to as FOSTA), which Silicon Valley lobbied against.

FOSTA was the result of an 18-month Senate investigation into Backpage.com, a website notorious for facilitating online sex trafficking and sexual exploitation of children. Thanks to FOSTA, tech companies can be held liable for knowingly running ads for sex trafficking and child sex.

Lisa Thompson, vice president of research and education at the National Center on Sexual Exploitation, said neglecting to hold tech companies liable for this in the new NAFTA agreement would encourage cross-border sex trafficking, which has increased rapidly over the past 10 years, especially at the U.S.-Mexico border.

Simply copy-and-pasting Section 230 language into the new NAFTA agreement, she wrote in an op-ed for The Hill, would “be nothing short of a sex-trafficking apocalypse.”

Silicon Valley — including many tech publications and libertarian voices — decried FOSTA for restricting internet freedom, and Google lobbied earnestly against its passage. The tech industry also lobbied for the new NAFTA agreement to include Section 230 language without caveats. According to a Quartz report, internet and tech companies and associations spent $38 million on lobbying through August this year.

According to two lawyers in an analysis published by Bloomberg, “The safe harbor [of Section 230] has always been a double-edged sword. For platforms, the task of monitoring user content and responding to demands to remove defamatory or otherwise unlawful third-party content could easily become so onerous as to be infeasible. On the other hand, for parties aggrieved by unlawful postings, it can be immensely difficult to cause an unresponsive platform to remove even obviously wrongful — even demonstrably illegal — content or speech.”

In an August 2017 letter to congressional staffers, Google lobbyist Stewart Jeffries wrote that FOSTA “has the potential to seriously jeopardize the internet ecosystem” and “undercut[s] one of the foundational statutes for the Internet: Section 230 of the Communications Decency Act.”

During Google’s Q2 2018, Jeffries lobbied the United States Trade Representative (USTR) on behalf of Google on a number of issues related to the NAFTA (now USMCA) renegotiation, like “freedom of expression and free flow of information,” as well as lobbying Congress over “anti-human trafficking” and FOSTA.

Aware of the tech industry’s push, rescued victims of sex trafficking sent a letter to Congress in September asking for the “Section 230-like language” in the new NAFTA agreement to be modified to hold internet and tech companies liable for “knowingly facilitating” sex trafficking.

Beyond Borders ECPAT Canada, a national advocacy organization seeking to end exploitation of children, said Canadian representatives in the NAFTA renegotiation responded to concerns “that the agreement might include a blanket prohibition which would prevent Canada from imposing liability on internet providers for content. We are pleased to see that the agreement would allow Canada to hold internet providers liable for online sexual exploitation of children.”

Beyond Borders ECPAT Canada also applauded FOSTA earlier this year.

While the USMCA is still a huge win for Silicon Valley, the tech industry’s resistance to anti-sex trafficking efforts may only strengthen anti-Big Tech sentiments in Washington as scrutiny of some of the major players — like Google, Facebook and Twitter — intensifies.

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The U.S. senator behind a bill to curb online sex trafficking, which companies like Google claim could “seriously jeopardize the internet ecosystem,” says more tech companies are rallying behind the legislation.

Ohio Republican Sen. Rob Portman said Thursday the Stop Enabling Sex Traffickers Act is about to pick up more backers from Silicon Valley, despite opposition from some major industry players like Google and Facebook.

“We are gaining momentum within the tech community, some of whom have concerns about changing the Communications Decency Act,” Portman said on the Senate floor. “Other tech companies have also joined in the fight to ensure that we can stop sex trafficking. And I know they’re going to follow Oracle’s lead in publicly supporting this legislation.”

Portman’s bill would amend Section 230 of the Communications Decency Act (CDA), a law granting broad immunity to websites from being held liable for content generated or posted by users. It was the basis of classified ads website Backpage’s legal defense after CEO Carl Ferrer and executives were arrested and charged with accepting money in the prostitution of minors.

The charges resulted from an 18-month Senate investigation led by Portman and Missouri Democrat Sen. Claire McCaskill that found Backpage knowingly facilitated pimping and child sex trafficking by editing ads to appear less suspicious. Despite overwhelming evidence, both federal and state courts upheld Backpage’s defense, adding Congress would have to amend Section 230 before the websites like Backpage could be held accountable.

Portman’s bill, co-sponsored by McCaskill and a total of 26 senators — including eight Democrats — would “eliminate federal liability protections for websites that assist, support, or facilitate a violation of federal sex trafficking laws.” It would also empower state law enforcement “to take action against individuals or businesses that violate federal sex trafficking laws” even without Justice Department participation.

There’s already companion legislation in the House of Representatives boasting more than a hundred co-sponsors, almost half of them Democrats. A Google lobbyist asked House members not to support the bill in August, arguing, as others in Silicon Valley have, that it would hold web services accountable for content posted by users, potentially subjecting them to criminal lawsuits and civil restitution. Media outlets friendly to Google and other tech giants have also voiced opposition.

Earlier this week, database, cloud, and business software firm Oracle became the first major company to endorse the bill, arguing affordable technology now exists to automatically screen user-generated content for offensive material like underage sex ads.

Portman praised Oracle on the Senate floor, saying others would soon follow publicly but neglected to name them.

“They agreed that this narrowly-crafted bill will hold bad actors accountable while protecting well-intentioned websites,” Portman said. “Oracle’s letter says in part, ‘your legislation does not, as suggested by the bill’s opponents, usher the end of the internet. If enacted, it will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking.’”

The Ohio senator said “many of them police their site” for such content already, adding the “Facebooks of the world, the Googles of the world, they are not the bad actors.”

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A U.S. Senate bill designed to eliminate legal protections for websites knowingly hosting child sex-trafficking ads became the target of tech giants like Google in August, but it’s Silicon Valley-friendly media outlets that are doing the fighting for them.

Senators Rob Portman, a Republican from Ohio, and Claire McCaskill, the Democrat from Missouri, introduced the Stop Enabling Sex Traffickers Act (SESTA) last month after the conclusion of an 18-month Senate investigation into Backpage.com, a website lawmakers found “actively and knowingly facilitated online sex trafficking.”

Backpage “coached its users on how to post ‘clean’ ads for illegal transactions, and knowingly edited ads to conceal evidence of crimes,” according to Portman. Its CEO, Carl Ferrer, became the first congressional witness to duck a Senate subpoena in 20 years during the investigation when he refused to show up for questioning. Ferrer and other Backpage executives were arrested last October on charges Backpage accepted money in the prostitution of minors.

Backpage shuttered its adult ads section in January, the same day the Senate released its report finding the website hosted 80 percent of all online sex ads (the National Center for Missing and Exploited Children (NCMEC) said in 2015 that 71 percent of all child sex trafficking reports submitted by the public were tied to Backpage). It further highlighted emails showing Backpage outsourced its ad screening to India between 2010 and 2012, where moderators removed words, phrases and images that would have flagged ads to authorities. Witnesses, including the parents of minors whose pictures appeared on Backpage, said the site refused to remove sex ads featuring identified underage children.

Despite the evidence, Backpage prevailed in court — twice. In 2016, the First Circuit Court of Appeals ruled in Backpage’s favor because of immunity granted to the website under section 230 of the Communications Decency Act (CDA)–the statute, passed in 1996, that gives broad immunity to websites from being held liable for content generated or posted by users.

Backpage won again in a California court in August based on the same statute, with the court opining “until Congress sees fit to amend . . . section 230 . . . [it] even applies to those alleged to support the exploitation of others by human trafficking.”

That’s when Portman and McCaskill introduced SESTA, a bill aimed at amending section 230 to “eliminate federal liability protections for websites that assist, support, or facilitate a violation of federal sex trafficking laws.” It would also empower state law enforcement “to take action against individuals or businesses that violate federal sex trafficking laws” even without Justice Department participation.

The bill has the support of 26 senators including eight Democrats. Despite the rare showing of bipartisanship, it doesn’t have the backing of Silicon Valley itself, or prominent Valley-focused media outlets.

A New York Times op-ed published Thursday highlights Google’s efforts to fight the law, in part via a letter from Google lobbyist Stewart Jeffries asking lawmakers in the House of Representatives not to sponsor similar legislation from Missouri Republican Rep. Ann Wagner.

Wagner’s bill, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, would take away section 230 protection for online entities engaged in “knowing or reckless conduct . . . that furthers or in any way aids or abets” child sex trafficking. It also empowers states to enforce federal laws and lets victims sue violators for civil restitution.

“I wanted to bring to your attention an issue that is picking up steam in the Senate and the House that has the potential to seriously jeopardize the internet ecosystem,” Jeffries wrote.

Since his letter, Wagner’s bill has picked up another 50-plus co-sponsors for a total of 116, including 74 Republicans and 42 Democrats. But the strong agreement on Capitol Hill isn’t so uniform among media, where outlets like The Verge and Salon, often champions of Silicon Valley and left-leaning politics, criticized legislative efforts to curb online child sex-trafficking.

The Verge described the bills as efforts to “further eviscerate CDA 230” and said Backpage “allegedly hosted ads from sex traffickers,” declining to acknowledge the mountain range of evidence from the Senate Subcommittee on Permanent Investigations, the NCMEC, numerous state attorneys general, and a Washington Post investigation that found Backpage “uses a contractor in the Philippines to solicit sex ads from other websites and also posts sex ads on other sites to attract more customers.” Instead, the outlet criticizes a press release for the House bill for citing Backpage six times.

It goes on to warn “a state could piggyback off the legislation to create a new law that would impose liability for all posts promoting the sex trafficking of children unless a site prescreens content or user registrations. This could potentially empower any one state in the U.S. to create a new regulatory regime for the entire web.”

A Salon article agrees the legislation “could significantly curtail internet freedom,” the author going on to liken the bills’ aims to combat online child sex trafficking as a way to facilitate “every ambitious prosecutor who wants a headline.”

“Furthermore, SESTA’s language is so broad that it could lead to state lawsuits and prosecutions of sites that don’t carry any advertising at all,” the Salon article reads. “It could sweep in every online service that hosts user-generated content—perhaps even including email services and comments sections.”

The article, authored by the former general counsel for the Wikimedia Foundation, appeared in Salon’s “What Is Future Tense?” blog, a section on technology policy co-sponsored by New America Foundation. The prominent Google-funded, left-leaning lobbyist group came under fire in August for firing a well-known Google critic at the behest of the search giant.

Portman disagrees with those characterizations of the bill and others in more prominent outlets like Forbes. In a Thursday Fox News op-ed, Portman said the legislation “only removes protections for rogue online actors that knowingly facilitate and participate in sex trafficking.”

“This bill does not affect liability protections for websites that obey the law,” Portman wrote. “In fact, it preserves the Communications Decency Act’s ‘Good Samaritan’ provision, which protects good actors who pro-actively block and screen for offensive material.”

Another Silicon Valley giant — database, cloud and business software firm Oracle — agrees. The company broke ranks from Silicon Valley Tuesday and expressed support for the bill.

“[W]e are 100 percent confident that a Portman/Blumenthal amendment – identical to S. 1693 – offered to the Communications Decency Act in 1996 would have passed the Senate overwhelmingly and the internet would have enjoyed the same exponential growth and innovation over the past twenty one years,” Oracle CEO Kenneth Glueck wrote to Portman. “Frankly we are stunned you must even have this debate.”

The company, a frequent Google critic, took the opportunity to take a thinly veiled shot at the search giant.

“Your legislation does not, as suggested by the bill’s opponents, usher the end of the internet,” the letter reads. “If enacted, it will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking.”

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