WASHINGTON – The U.S. House of Representatives has passed the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (FOSTA), a controversial bill which its supporters say is designed to clarify that section 230 of the Communications Decency Act (CDA) “does not grant immunity to websites that facilitate sex trafficking,” but critics say excessively erodes the protection available to website operators with respect to content posted by third parties.
“We must end sex trafficking in the United States,” Speaker of the House Paul Ryan tweeted Tuesday. “So much trafficking starts with deceit, exploitation, and recruitment on the internet. Today, the House votes to enhance criminal penalties and hold these websites accountable.”
A summary of the bill’s intent published by the House Judiciary Committee lists several things the legislation is designed to do, including the above-referenced clarification on section 230 of the CDA; creating a new federal crime (18 U.S.C 2421A) under which “websites that have the intent to promote or facilitate illegal prostitution can be prosecuted;” enhancing the criminal penalty “for websites who promote the illegal prostitution of 5 or more persons or act with reckless disregard for the fact that sex trafficking occurs on their website;” “allows state and local prosecutors to enforce sex trafficking statutes and the new 2421A;” and “gives victims of sex trafficking a pathway to sue bad actor websites for conduct violating the new criminal law.”
While the bill enjoys broad bipartisan support, opponents of the bill (a population which includes some prosecutors and sex trafficking victims) say it eviscerates the protections available to websites under Section 230 of the CDA, without doing much to help victims of sex trafficking beyond the options and approaches already available to them.
“It’s a shame that the Internet Association caved to political pressure and started supporting these bills that gut Section 230 protection,” said attorney Larry Walters, who has closely followed FOSTA and the related bill SESTA from the time they were first proposed. “That was the beginning of the end.”
Walters said if the bill passes in its current form, “the result will be significant forced censorship by online intermediaries, and decreased innovation given the fear of lawsuits and state-level prosecution.”
“The final language that makes up FOSTA was cobbled together from various bills and amendments that, together, mark the greatest threat to free expression on the internet in modern times,” Walters said.
Attorney Karen Tynan called FOSTA “another hollow and error-filled piece of legislation meant to placate fundamentalists.”
“The legislation is so broad that one could envision an aggressive prosecutor using a law like this against cam companies as well as other websites that feature performers and sex workers in order to take some grand stand against perceived evil,” Tynan said. “Like we saw in the recent raids in New Orleans that were meaningless as far as impacting human trafficking, politicians and law enforcement use the term ‘human trafficking’ to perform broad sweeps against any type of sex work, or sexual expression.”
Both Walters and Tynan noted that when dealing with any controversial issue which involves sex, legislative responses tend not to be particularly well-reasoned, as nuanced as the problems they seek to solve, or crafted in a way which addresses the problem without unnecessarily burdening freedom of speech and expression.
“Legislative consideration of a hot-button issue like sex trafficking has not been rational or level-headed,” Walters said. “If the Senate approves this bill, and it becomes law, any site that permits user-generated content involving sexual topics will be at risk of missing something that ‘facilitates’ or ‘promotes’ prostitution. Then, anyone willing to pay a filing fee could start suing online platforms under the new law. Section 230 provided an important protection from legal abuses like that, given the critical free expression issues at stake. If FOSTA becomes law, all that will change.”
Tynan noted that FOSTA isn’t just a piece of new federal legislation, but part of a larger problem which is consistent among legislative bodies across the country.
“This is a disconcerting development but part of the national trend to conflate crimes such as trafficking with lawful activities and protected speech,” Tynan said. “As an industry we should make sure to voice or concerns and doubts about these developments.”
We must end sex trafficking in the United States. So much trafficking starts with deceit, exploitation, and recruitment on the internet. Today, the House votes to enhance criminal penalties and hold these websites accountable. https://t.co/uUFJpNXXA8
— Paul Ryan (@SpeakerRyan) February 27, 2018
