Having Learned Absolutely Nothing From The Failures Of FOSTA, Senators Graham & Blumenthal Prep FOSTA 2.0

Legal Issues

from the guys,-seriously? dept

Just as some in Congress are finally realizing that perhaps all of the moralizing around the need for FOSTA missed the fact that it actually put more people at risk, Senators Richard Blumenthal (an original sponsor of what became FOSTA) and Lindsey Graham are preparing for FOSTA 2.0 instead. This is coming a few months after Graham’s big grandstanding “but think of the children online” hearing that was basically a few hours of clueless moral panic about things that insecure adults were absolutely positive the kids were getting up to on their phones.

The latest reporting on the planned “let’s break Section 230 a bit more” bill from Graham and Blumenthal is that they’ll create a new FOSTA-like exemption from Section 230 protections for any internet company found to have hosted “child sex abuse material” (the industry’s new favorite acronym: CSAM). From what I’ve heard in talking to people on the Hill, a “commission” would be formed that would set forth “best practices” for preventing CSAM on their platforms, and if an internet company wanted to “earn” its CDA 230 protections, it would need to show that it complied with the commission’s recommendations. Also, “certifying” that you comply, but not actually complying, could lead to criminal charges.

Of course, what this misses is that basically all major internet companies already have systems in place to deal with this stuff — mostly in working with NCMEC, the National Center for Missing and Exploited Children. But, Congress loves nothing better than an issue it doesn’t understand but can grandstand over. A few months back, the NY Times ran a highly misleading article about CSAM, using the data around all of the vast amount of reporting that internet platforms did to NCMEC about the CSAM they found and dealt with… and using that to suggest the platforms themselves were to blame for the issue.

Child sexual abuse is a very real and very serious issue. But, as with “sex trafficking” and FOSTA last year, blaming the tech companies for it seems really misguided. That NY Times article did exactly that — using the numbers reported to NCMEC as evidence that the problem was growing (rather than as evidence that tech companies were doing a better job finding, blocking and reporting this stuff). Indeed, if you actually read down into the details, what the article is really demonstrating is the failure of the federal government and the Justice Department in tackling the very real criminal issues related to CSAM.

But what good Senator can grandstand about their own failures to fund the DOJ’s efforts, when it’s much more fun and headline-grabbing to send letters to 36 major internet companies demanding to know what they do to stop CSAM, which is now being used as the basis for this new law.

Again, these Senators could be funding the DOJ to tackle the problem. They could be helping NCMEC better deal with its own issues. But, instead, they’re going to attack the group of companies who have been overwhelmingly proactive in helping to fight CSAM. And, in the process, they’re going to end up poking another bunch of holes in Section 230, which (if FOSTA is any evidence) is likely to have the exact opposite impact of what the Senators insist will actually happen.

Filed Under: cda 230, csam, fosta, lindsey graham, richard blumenthal, section 230, sesta