Former President Donald Trump repeatedly demanded that Congress repeal Section 230 of the 1996 Communications Decency Act, the law widely known as “the First Amendment of the Internet. But Trump has been out of office for less than four weeks, and already Democrats in the United States Senate have proposed a bill that would strip online sites of the protections guaranteed by the 25-year-old law.
In an online discussion as part of the #interNEXT21 conference on Feb. 11, attorneys Corey Silverstein and Lawrence Walters issued dire warnings about consequences to adult sites — and, in fact, the entire internet — if the “Safe TECH Act” were to pass Congress. But that was just one of several warnings the two lawyers handed down during their wide-ranging, 50-minute conversation, which focused on a series of clear and present dangers to free expression online, and to adult businesses and performers on the internet.
Section 230, essentially, protects online platforms from legal responsibility for content posted by users. That allows platforms to allow a vast range of content — including adult content — to appear online without censorship or extensive monitoring by the platforms and internet providers where it appears. In Thursday’s #interNEXT21 panel, Silverstein described the “Safe TECH” bill introduced by Democratic Senators Mark Warner, Mazie Hirono, and Amy Klobuchar as a “new idea to destroy Section 230.”
“They somehow want to rewrite all of Section 230, and if you are in any way making money in relation to something being posted, you would have no ability to assert Section 230,” Silverstein explained.
Silverstein called the development “mind boggling,” because Section 230 “led to the expansion of the internet. It led to the creation and expansion of Google, and YouTube and so forth. But with this Safe TECH Act, this is creating a situation where web hosts, social media platforms like Twitter, Facebook, are going to have to censor all commentary out of the fear of potential civil exposure.”
Walters agreed, calling the Safe TECH Act a “dumpster fire” which would essentially revoke Section 230 by removing immunity for commercial posts — and “just about everything you can imagine is commercial in some way, unless they’re posting pet videos or grandparents visiting their grandchildren.”
Under Section 230, while platforms can of course be sued for content, in most cases those lawsuits can be quickly dismissed by courts, Silverstein explained, which keeps the legal and financial risks low for those online sites. In most cases, such suits are stopped before they are even filed, he added, due to the low chance of success. But under the Safe TECH Act, platforms would be forced to make what Walters called an “affirmative defense,” in other words, being forced to prove that they are covered by Section 230 protections — while under the 25-year-old law, the burden in on the party bringing the suit to prove that the platform is not protected.
“Section 230 was designed to prohibit these frivolous lawsuits from the beginning,” Walters said. “Now they’re going to be filed like crazy. That's going to result in tremendous censorship, and probably closure of a tremendous amount of online platforms.”
The law would leave many of his clients “drowning in legal debt,” Silverstein noted. “That’s where I think some of these politicians are completely out of touch with reality.”
But both attorneys also noted that Section 230 has already suffered one blow, with the 2018 passage of the FOSTA/SESTA law, which is designed to remove Section 230 protections for content that supposedly promotes “prostitition or sex trafficking.”
That law has already caused “tremendous damage to the internet ecosystem,” Walters said. “Many sites went dark, many went overseas. Entire sections of erotic content were eliminated. It was tremendously disruptive to adult entertainment in particular, because it’s very difficult to know whether any particular adult content somehow promotes or facilitates prostitution.”
Walters serves as general counsel to the Woodhull Freedom Foundation, and in that role is leading a federal lawsuit to throw out FOSTA/SESTA. “We believe it violates the First Amendment, and the Fifth Amendment. The Fifth Amendment is due process. Unbelievably this law actually criminalizes content and speech that was legal when the activities occurred, but it’s supposedly illegal now.”
Walters said that when lawmakers in Washington were drawing up the FOSTA/SESTA bill, “there was no real input from people most impacted by that law, primarily sex workers. And the online platforms that were fighting against the law struck some kind of backroom deal. The Internet Association, which is composed of Facebook and Google and everybody else opposed the law. Then suddenly they reversed course.”
In response to a viewer question, Silverstein added that with no Section 230, adult “tube” sites such as Pornhub, xHamster and others may never have existed. “I think it would be very, very unlikely, and it would be a very different internet if Section 230 didnt exist. Especially when you think of the tube site market. Quite frankly, I don’t see how they would be able to afford to deal with the constant litigation.”
The two free speech attorneys, however, did not merely issue general warnings about threats to online freedom such as the Safe TECH Act. They also had warnings — and even more usefully, advice — for independent adult performers, particularly those managing their own content businesses that utilize social media such as Twitter and Instagram.
The most imminent threat to those adult performers and adult entertainment, Walters said, is “deplatforming,” the sudden, often arbitrary shutdown of accounts for violating some aspect of a platform’s terms of service.
“You have a small number of companies, and a few individuals who can decide if you have an internet presence or not, with the flip of a switch. We saw it for years with shadowbanning, and termination of accounts, termination of banking accounts and social media accounts. Both are private actors making decisions,” Walters said on the panel. “There’s no First Amendment issue, no government censorship. But this private form of censorship has become a much bigger issue and bigger concern. These private companies hold the keys to the kingdom, and one day if you violate the rules, you’re gone.”
Walters said that he has composed a list of steps that adult entertainers online can take to at least “mitigate the risk” of deplatforming.
“Make sure you have backups of all your information. If you’re on social media, you need to have another way to get in touch with your followers. Emails or other social media contacts to get back in touch with these people if you suddenly lose your account,” Walters said.
He also advised performers to “know what the rules are,” on any social media platform. They should familiarize themselves of course with the formal terms of service on any site, but also, “what is the theme of the site? What’s typically allowed? What’s routine? What’s accepted? What do other people get in trouble for,” Walters advised. “Learn from their mistakes, so you don’t have to pay that ultimate price of losing your account and being deplatformed.”
Walters had one last piece of advice, which was basically for performers and other adult businesses to work with people and entities who are open to sexual content and products.
“Do business with social media sites, and hosts, and banks that are adult-friendly,” he said. “The folks that have been around the industry for a while understand the unique concerns of the adult entertainment industry. Those are the people you should be doing business with, rather than some large, mainstream service provider that’s going to freak out at the first sign of trouble.”
