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--:-- Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.
--:-- Bird Pinkerton: I'm Bird Pinkerton, podcast producer at Vox Media.
--:-- Sean Rameswaram: Thanks, Bird. I hear you might have a story about mattresses to tell me.
--:-- Bird Pinkerton: Yeah, Sean. Don't tell it yet. We'll tell it in a second. First, I'll just say that one who is interested in mattresses could go to mattressfirm.com and use the code PODCAST10 to save 10% on a new mattress.
--:-- Sean Rameswaram: A week ago today, Donald Trump signed a bill called FOSTA into law. FOSTA stands for the Fight Online Sex Trafficking Act. That's what it was called in the House. In the Senate, they called it SESTA, the Stop Enabling Sex Trafficking Act.
--:-- Bird Pinkerton: Either way, it sounds pretty good, right? Who doesn't want to fight sex trafficking?
--:-- Sean Rameswaram: And this bill was a rare bird. Legislation that got nearly unanimous political support in 2018. 97 senators voted in favor of it. It's bipartisan.
--:-- Bird Pinkerton: We have about 25, 28 co-sponsors now. And to me, this is the only way we're going to be able to slow this down and begin to turn the tide. But a whole lot of people say it's a terrible idea because FOSTA will change the way the Internet works.
--:-- Sean Rameswaram: Broad language in the bill may sweep up legitimate voices along the way and impede on freedom of speech. The bill weakens something called Section 230, which a lot of people say is the entire foundation of all of the sites we use to connect with each other.
--:-- Bird Pinkerton: Without it, we wouldn't have the Internet as we know it. That sounds like a hyperbolic description, but it's really, really not.
--:-- Sean Rameswaram: Asia Romano writes about the Internet at Vox, which means lately she's been writing about Section 230.
--:-- Bird Pinkerton: Which was introduced in 1996 as part of the 1996 Communications Decency Act by two members of Congress, one a Republican and one a Democrat. So it was bipartisan legislation.
--:-- Sean Rameswaram: It was just a simple piece of text slipped into this enormous telecom bill. But the repercussions that it's had for the internet, for the growth of the internet and the rise of every major platform that we know and love and hate and cherish...
--:-- Bird Pinkerton: It all comes back to this tiny piece of text that was slipped into this bill two decades ago, which basically says that someone who creates a website or someone who hosts a website is not responsible for content that another person writes on that website.
--:-- Sean Rameswaram: OK, so Section 230 essentially means you can't blame a website for some comment some person leaves on it or something like that, right?
--:-- Bird Pinkerton: Exactly. I'm thinking of a practical example of that is that like if I upload a video of myself jaywalking on YouTube, it's not YouTube's fault that I jaywalk.
--:-- Sean Rameswaram: Exactly right. And more importantly, say in that video, someone else's is caught on that video and they're also jaywalking. They can't sue YouTube because you put that video of them jaywalking on the Internet.
--:-- Bird Pinkerton: Does that make sense?
--:-- Sean Rameswaram: Yeah, but I imagine there's like a much more terrifying, toxic example of this.
--:-- Bird Pinkerton: Sure. So think about every time you or someone you know has been harassed or targeted or made an object of hate speech. And now imagine that for every single instant of those tweets or those comments being directed at you or directed at anyone, Twitter could be held liable for what that person said.
--:-- Sean Rameswaram: In that world that I imagine Twitter doesn't last very long. Exactly. No platform could.
--:-- Bird Pinkerton: And the reason that Section 230 has been so monumental is that it essentially was, quote unquote, what we call a safe harbor for any new website, any startup, any company that needed to innovate and wanted to curry favor with investors.
--:-- Sean Rameswaram: I mean, no investor is going to go near any type of website that is going to be held liable for what its users do. Like that's just not going to happen.
--:-- Bird Pinkerton: So Section 230 allowed the Internet to flourish and grow.
--:-- Sean Rameswaram: So how does Section 230 relate to FOSTA and SESTA?
--:-- Bird Pinkerton: So what FOSTA and SESTA does is these bills essentially say, OK, but in an event where someone is promoting sex trafficking, in that event, these bills create an exception for Section 230 that allows prosecution to go forward.
--:-- Sean Rameswaram: That doesn't sound so bad when a website ends up being a forum for sex trafficking. This Section 230 protection that all sites have, sort of by default, no longer applies.
--:-- Bird Pinkerton: And this bill was specifically written to take down a specific website And that website is Backpage Which you heard a lot about because it been in the news recently
--:-- Sean Rameswaram: 47 senators almost half of the Senate are co-sponsors of this bill They want to remove legal protections for websites that host prostitution ads.
--:-- Bird Pinkerton: The bill is aimed primarily at one site, Backpage.com, it's called. Groups like Backpage.com, which is, you know, a website that we have investigated, are selling women and children online.
--:-- Sean Rameswaram: and really doing it without any ability for prosecutors or the victims to be able to stop it.
--:-- Bird Pinkerton: Okay, why was everyone after Backpage?
--:-- Sean Rameswaram: So Backpage is one of a number of websites that have been perceived as fostering or facilitating actual sex traffic and sort of doing so in a knowing or tacitly complicit way.
--:-- Bird Pinkerton: And a number of other websites in the past have been seized by federal authorities during the course of their investigations. But Backpage has always been successfully able to defend itself until recently because it's argued that its Section 230 protections make it not liable for the actions of its users.
--:-- Sean Rameswaram: Huh. So what's the status of Backpage now that the law has been passed?
--:-- Bird Pinkerton: The law actually had no effect on Backpage, ironically. So in 2016, a federal judge basically found that Backpage was safe under safe harbor protection of Section 230 and was not liable.
--:-- Sean Rameswaram: But then immediately that tie began to shift and Backpage began to lose appeal after appeal. And as of this month, judges in federal circuit court have said, no, you don't have any exemption under Section 230 and the feds have the right to do what they will with you.
--:-- Bird Pinkerton: Federal agents today searched an Arizona house belonging to one of the website's founders as the federal government shut down the Internet site, Backpage.com, saying it was an actions supported by the Justice Department's office that fights child sexual exploitation.
--:-- Sean Rameswaram: But it's important to note that all of this happened under existing law, which makes the argument that we didn't even need FOSTA-SESTA to begin with, because the law already is set up to provide exemptions in these cases.
--:-- Bird Pinkerton: Wait, so the Congress almost unanimously passed this bill to shut down this website that got shut down anyway around the exact same time?
--:-- Sean Rameswaram: Yes, exactly. So Backpage shutdown had nothing to do with this bill.
--:-- Bird Pinkerton: Will this bill shut down other websites?
--:-- Sean Rameswaram: The bill already has shut down other websites. Things like Craigslist Personals.
--:-- Bird Pinkerton: Which is where a friend of mine met his wife. Yeah. I know several people who've actually met their long-term partners through Craigslist Personals. It's a thing.
--:-- Sean Rameswaram: But now it exists no more because Craigslist said when they shut down the site that they were doing it expressly because they didn't have the ability to ward off potential liability that they suddenly had under FOSTA-SESTA.
--:-- Bird Pinkerton: And this has been something that we've seen elsewhere, too. We've seen Reddit shutting down specific subforums that were about discussing sex work and so forth.
--:-- Sean Rameswaram: We've seen sites like the furry dating site Pounced.org completely shut down. And they wrote this basically long manifesto basically saying we're a very small website. We have done this freely for all of you guys for years.
--:-- Bird Pinkerton: We don't have the ability to police ourselves against the possibility that the feds might come along and decide that we are, quote, knowingly assisting, facilitating or supporting sex trafficking.
--:-- Sean Rameswaram: So needless to say, there could potentially be a lot more sites that feel just threatened by FOSTA and thus forced into closing down.
--:-- Bird Pinkerton: Right, exactly. And we've seen sort of movement among companies like Microsoft and Google to surreptitiously check and monitor their users to make sure that things are on the up and up.
--:-- Sean Rameswaram: And there's no confirmed proof that that's because of FOSTA-SESTA. But there are a number of reports coming from users of those platforms that they had been scanning for certain terms and words immediately after the bills passed.
--:-- Bird Pinkerton: Wow. Yeah. So does this mean that this bill has created some sort of divide between like big internet and little internet?
--:-- Sean Rameswaram: It helps big tech. It helps major established tech companies like Facebook, Google, Amazon, Microsoft, Oracle.
--:-- Bird Pinkerton: Wait, I thought this was like a headache for Facebook because now they have to maybe they're more liable for what people do and say on their website. Is that not the case?
--:-- Sean Rameswaram: Nope, they don't care because they're big enough now that they can afford the threat of a lawsuit.
--:-- Bird Pinkerton: But your uncle's motorcycle forum or your mom's knitting website, you know. The grassroots internet. The grassroots internet does not have the ability to face the constant threat of litigation.
--:-- Sean Rameswaram: We've been seeing a noticeable trend from websites like these larger corporations that have really privatized their sectors of the internet. They sort of don't really have smaller websites back anymore not to demonize them but they're not taking stands as fervently as they used to to protect and defend free speech and the internet or to act in ways that would allow startup growth to happen.
--:-- Bird Pinkerton: So now that we've seen these sort of holes poked in Section 230, is there likely to be more poking of holes?
--:-- Sean Rameswaram: Yeah. Basically, there have been a number of legal challenges in recent years that have been slowly attempting to chip away at safe harbor provisions.
--:-- Bird Pinkerton: And I think that we're reaching a point culturally and in terms of the legal framework of how we think about the Internet, where the question of whether we even need 230 is going to arise.
--:-- Sean Rameswaram: I think given what we've seen from social media platforms in recent years, there are a lot of people who would probably be like, no, we don't even need free speech anymore. Make the websites all moderate their users and make them actually be accountable for what their users are doing and have to deal with the fallout if they fail to successfully moderate.
--:-- Bird Pinkerton: And that sounds good in theory. Sounds un-American.
--:-- Sean Rameswaram: Well, it also sounds like there are only three websites on the Internet, right? Like there's just Facebook and Twitter and Reddit and nothing else.
--:-- Bird Pinkerton: But if you think about how the evaporation of Section 230 protection could completely obliterate all the small websites that you love and hold dear, then you can see that the challenges that seem to be encroaching upon 230, they represent different ideological beliefs in what the Internet should be and who should control it.
--:-- Sean Rameswaram: FOSTA-SESTA is already limiting the internet, but the whole point of this legislation is to curb sex trafficking. Will that work?
--:-- Bird Pinkerton: That's next.
--:-- Sean Rameswaram: This is Today Explained. Bird, what is your story about mattresses?
--:-- Bird Pinkerton: So, Sean, I went to purchase a Mattress Firm mattress as per your many suggestions. Thank you.
--:-- Sean Rameswaram: You know, I brought it home with me and I was like lying on it and I was like, man, this mattress is firm. But it also feels like there's just like there's something in here. There's something special, you know, inside.
--:-- Bird Pinkerton: Was it 120 night sleep trial or 120 night low price guarantee? Mattress Firm.com, podcast 10, May 2nd. It was like almost as good as that, but just like almost a little bit better.
--:-- Sean Rameswaram: Okay. So I just sliced into it with a pair of nail scissors.
--:-- Bird Pinkerton: No, you didn't.
--:-- Sean Rameswaram: Well, I had to investigate what was really at the heart of this mattress. You cut open your mattress?
--:-- Bird Pinkerton: It's just full of money. No, it isn't.
--:-- Sean Rameswaram: Yeah, it is. It's full of treasure.
--:-- Bird Pinkerton: I don't know if this is true, but we're going to find out at the end if it is or not.
--:-- Sean Rameswaram: FOSTA just got approved, and it seeks to fight online sex trafficking. So will it? No, it won't.
--:-- Alex Levy: To the extent that its endgame is to shut down big platforms, that's not going to serve the cause at all. Big platforms, including Backpage, which is the explicit target actually of this bill, those provide a really great pathway to finding victims and apprehending traffickers and basically keeping the whole thing in sight of the good guys.
--:-- Sean Rameswaram: We rely a lot in investigating trafficking and prosecuting trafficking on platforms to be our eyes and ears, basically, to report things, to respond to subpoenas, to help with investigations.
--:-- Alex Levy: There's a lot said about how these platforms provide access to victims to bad guys, But sort of by hypothesis, it provides the exact same access to the good guys.
--:-- Sean Rameswaram: Who are the good guys and the bad guys in sex trafficking?
--:-- Alex Levy: The bad guys are the traffickers, right? Also customers who seek out non-consensual encounters. And the good guys are actually, there's a wide range, really. There's law enforcement to the extent that it looks for victims of trafficking.
--:-- Sean Rameswaram: There's NGOs that reach out. There family members I mean you see actually a lot of news articles about how Good Samaritans or family members or even journalists find victims on these websites And again, it's really specifically Backpage that's talked about.
--:-- Alex Levy: The good people are wide ranging. There's a lot of people who want to fight trafficking. And the thing about Backpage and the thing about the wider, more visible platforms is that it allows people who don't have any kind of specialized knowledge to do that.
--:-- Sean Rameswaram: You know, people who don't know how to access the dark web. The dark web being like Silk Road, being like where people go to trade the shadiest shit on the internet, drugs, guns, sex, mayhem.
--:-- Alex Levy: Yeah. Moving away from the big platforms, sex trafficking can go a lot of places. There's dark corners of the internet. Some of them are accessible only to people who have a lot of proficiency with the internet and technology and others don't require that kind of proficiency, but they're more scattered.
--:-- Sean Rameswaram: They are better at perhaps encoding things in a way that makes them opaque to all the good guys I mentioned.
--:-- Alex Levy: So FOSTA-SESTA is probably going to move sex trafficking into these dodgy shadows of the internet.
--:-- Sean Rameswaram: But what about the consensual stuff like your everyday pedestrian consensual sex work?
--:-- Alex Levy: The effect on sex workers is different, and I think it's extremely important to listen to sex workers on this front.
--:-- Sean Rameswaram: So I'm speaking, having heard their accounts, my understanding is that they often rely on peer networks that are online to stay safe.
--:-- Alex Levy: Because sex work is criminalized, they rely quite a bit on these peer networks because they often don't have recourse to the law, to law enforcement, to protection.
--:-- Sean Rameswaram: They need these websites to communicate things about dangerous clients, for instance, to communicate other ways of staying safe.
--:-- Alex Levy: There was also a study, a very good empirical study from Baylor University that correlated the availability of certain platforms, specifically the escort section of platforms, with a lower homicide rate in the demographic that is most typically associated with sex work.
--:-- Sean Rameswaram: The authors do come up with, I think, some very interesting and strong theories for why there might actually be a causal link there.
--:-- Alex Levy: Access to platforms, access to these websites is a way of staying safe.
--:-- Sean Rameswaram: If this legislation doesn't do anything to really address sex trafficking, what do you think it does do?
--:-- Alex Levy: What I think it does is it moves it out of sight.
--:-- Sean Rameswaram: I think, you know, there's this claim that the internet caused an explosion in sex trafficking. But what it clearly did do was bring a lot of things, you know, good and bad and some of them very ugly, onto the radar of average people.
--:-- Alex Levy: I do believe that this law will decrease the number of reports of trafficking. And I think people are going to be very soothed by that, and they shouldn't be.
--:-- Sean Rameswaram: This is something that's, in any event, not an ill-intentioned effort to move ugly things out of sight.
--:-- Alex Levy: The actual fight against sex trafficking is very uncomfortable. It's very ugly. It forces us to confront bad things and things that are not necessarily particularly exciting to fight, right? Fighting homelessness, improving the foster care system, none of that is as cinematic as fighting back page.
--:-- Sean Rameswaram: The effect of this law will be to allow us to avoid that confrontation and to create an environment that's as hospitable, if not more hospitable, to this sort of exploitation.
--:-- Alex Levy: I'm Alex Levy, a professor at Notre Dame Law School.
--:-- Sean Rameswaram: I'm Sean Rameswaram. This is Today Explained.
--:-- Bird Pinkerton: Bird, did you really find all that treasure in your mattress?
--:-- Sean Rameswaram: No but I did not lie to you the emotional truth of this story is that uh it was all a metaphor for the amazing discounts that you get from a mattress firm dot com like the 10 discount you get when you type in podcast 10 before May 2nd.
--:-- Bird Pinkerton: Yeah, your mattress is basically full of free money.
