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Michelle Cohen Comments on Potential Immunity Exception for Online Companies if SESTA Passed in Congress

Concern has been raised by the US tech community about the possible repercussions of the proposed amendment to Section 230 of the US Communications Decency Act 1996 (‘CDA 230’) which protects US companies from civil liability for user-generated content on their digital platforms, following the US Senate Commerce Committee’s approval of the latest version of the Stop Enabling Sex Traffickers Act (‘SESTA’) on 8 November 2017. If signed into law, SESTA would make digital platforms that are knowingly assisting, supporting, or facilitating a violation of sex trafficking law liable to be prosecuted, by amending Section 230 to exclude enforcement of federal or state sex trafficking laws from the immunity granted by CDA 230…

…According to the latest version of SESTA, platforms would lose immunity under CDA 230 if they are ‘knowingly assisting, supporting or facilitating a violation.’ Michelle Cohen, Member at Ifrah Law PLLC, comments that “SESTA may be overbroad in its reach of those who support, assist or facilitate a violation of the sex trafficking law if the ‘knowing’ aspect is not carefully circumscribed. For instance, if someone hosts a site of adult content and neutral-content and a user uses the site to engage in sex trafficking, will the host be liable in general? Will the host be liable if a member of the public or authorities reports sex trafficking and the host fails to take steps to take down the content? Is the host required to regularly monitor and remove content going forward? There are many open questions.”

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