[andy9775]

How do these laws affect companies like SquareSpace[1] (companies which provide a site builder and hosting)? If someone builds a site which violates these laws is SquareSpace held responsible? Is it up to SquareSpace to police the content on their customers sites (comments sections, content, etc.)? Or do they have some sort of immunity or contractual immunity from these laws which places the responsibility of content on the end customer/site owner?

[1] I'm using SquareSpace as a placeholder. I think netfliy, wordpress builders and hosts, and other similar companies could also be impacted(?)

[Dracophoenix]

IANAL so take what I say with a grain of salt.

Because of SESTA/FOSTA, Section 230 no longer provides immunity for websites or website infrastructure from civil or criminal liability with regards to knowingly hosting trafficking-related content (however how "knowingly" and "trafficking-related" would be defined/interpreted in a court case, I'm not aware). Square space would theoretically be liable even if it is an intermediary/provider of infrastructure but neither a producer nor direct provider of content.

Before SESTA/FOSTA, SquareSpace would have legal immunity from suits regarding user-generated content and only users would be held liable if the content was determined to be criminal. SquareSpace has not and is not legally responsible to police content of it's users. Doing so would violate the SquareSpace's 1st amendment rights as a private company. However, under third party doctrine, SquareSpace could be subpoenaed for (theoretically)narrowly tailored and relevant user information by a court of law. Netlify, wordpress and other hosts would similarly be held liable to the degree SquareSpace is: knowingly hosting trafficking-related cotent.

However bigger question is how far does this go? To the registrar level (e.g. Namecheap)? The DNS (ICANN/IANA)? What about Internet Exchanges and Peering (e.g.AMS-IX)? While SESTA/FOSTA hasn't been tested at these levels, it theoretically implicates the entire infrastructure of the Internet should just one site host sex-trafficking related material. This would violate the sovereignty of other nations and gives the US government universal jurisdiction. Hopefully this can be resolved at some point by the Supreme Court. Hopefully.

[dragonwriter]

> Because of SESTA/FOSTA, Section 230 no longer provides immunity for websites or website infrastructure from civil or criminal liability with regards to knowingly hosting trafficking-related content

§230 explicitly never limited criminal liability, and arguably didn’t limit civil liability for knowingly distributing unlawful content (publisher liability, which it expressly prevents, applies without knowledge; distributor liability, which some courts have found it implicitly prevents as well [IIRC, only the 11th Circuit had ruled on this, at the federal appellate level] applies to knowing distribution).

And FOSTA-SESTA adds no-knowledge civil liability for owning, managing, or operating an information system with “reckless disregard of the fact that such conduct contributed to sex trafficking”.

[Dracophoenix]

>>§230 explicitly never limited criminal liability,

Thank you for the correction.

>>and arguably didn’t limit civil liability for knowingly distributing unlawful content

Prior to FOSTA/SESTA, would a search engine be considered liable for knowingly distributing unlawful content? The 1st Circuit argued that was not the case[1] by citing Fair Housing Council of San Fernando Valley vs Roommates.com. Trafficking-related content would require inducement/incitement of action by the website (not mere advertisement, invitation or facilitation thereof) in order to be deemed unlawful. Trafficking-related content on a website was not, on its own, per se unlawful to distribute knowing or unknowingly. That was the case until Backpage's founders were indicted and FOSTA/SESTA was passed.

>>And FOSTA-SESTA adds no-knowledge civil liability for owning, managing, or operating an information system with “reckless disregard of the fact that such conduct contributed to sex trafficking”.

And this is the concerning bit I had in my last paragraph.

[1]https://www.casemine.com/judgement/us/5914f772add7b049349953...

[andy9775]

Being subpoenaed makes sense. If SquareSpace (or cloudflare, namcheap, etc.) is required to police content, hosting goes back to costing hundreds or thousands of dollars a month just to pay for the content moderators (at every level?).