Congress Passes the Fight Online Sex Trafficking Act (FOSTA)
April 10th, 2018
Fight Online Sex Trafficking Act Background
On March 21, 2018, the United States Senate passed H.R. 1865 – Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA). This bill is intended to amend section 230 of the Communications Act of 1934, also known as the Communications Decency Act of 1996, which limits the legal liability of interactive computer service providers for the content they published that was created by others.
FOSTA is a bipartisan legislation that attempts to give sex trafficking victims the ability to seek justice against online platforms that knowingly facilitate and allow these acts to continue. The bill passed 97-2 and is currently awaiting approval from President Donald Trump.
Does FOSTA Open Pandora’s Box?
This act is allegedly designed to help states fight against sex trafficking. While this is a great purpose and goal, there are parts of this vague statute that are extremely alarming from a freedom of speech and technological advancement perspective. Presented to the President on April 3rd, Congress specified this is “An Act to amend the Communications Act of 1934 to clarify that section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for other purposes.” The tail end: “and for other purposes” suggests this statute could be used to for any number of yet-to-be-specified purposes. If this is not alarming enough, the rest of the amending language will leave many wondering exactly how many websites could be considered “in violation” of the law.
FOSTA SEC. 3. Promotion of Prostitution and Reckless Disregard of Sex Trafficking.
Section 3 of the Act specifically addresses the promotion of prostitution and seeks to amend such acts by inserting “§ 2421A. Promotion or facilitation of prostitution and reckless disregard of sex trafficking,” to the United States Code. The first part of this section reads as follows:
“(a) In General.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.”
Aggravating Circumstances of § 2421A.
This section also addresses the two aggravating circumstances that will increase the punishment to a fine or imprisonment of up to 25 years, or both. The two aggravating circumstances defined by FOSTA are:
- Promoting or facilitating the prostitution of 5 or more persons; or
- Acting with reckless disregard of the fact that such conduct contributed to sex trafficking, in violation of 1591(a).
So, it seems that if you own a interactive computer service with the “intent to promote or facilitate” prostitution of another, you can be imprisoned. How does one own a website with intent to facilitate prostitution?
If pimps start creating Facebook profiles for their prostitutes and contacting people to try to get business and Mark Zuckerberg doesn’t read everyone’s messages in order to block these users, is he guilty of owning Facebook with intent to promote prostitution? Any website where a person can create a profile could potentially be used to promote prostitution by the profile creator. Must every such website owner, like those of LinkedIn, Tumblr, Twitter and Tinder, now check our messages to prevent themselves from being accused of “facilitating or promoting” prostitution? What exactly must a website owner do to prevent becoming an incidental promoter?
More concerning, the Attorney General could potentially use any suspicious profile as a reason to subpoena the records of and/or wiretap any social media, classified services or dating app he chooses? In a day and age where people do not want too much government regulation, are we giving it too much power?
Or, maybe you think it’s not really going to happen?
Backpage.Com and Affiliated Websites Have Been Seized by Federal Authorities
On April 6, 2018, Backpage.com, a major classified advertising website, was seized by the FBI, IRS Criminal Investigation Division and other federal agencies. The co-founders of Backpage.com have stated that the company properly screens advertisements; however, in January 2017 the Senate’s Permanent Subcommittee on Investigations released a report of “Backpage.com’s Knowing Facilitation of Online Sex Trafficking.”
The executive summary of their report stated that “Backpage is involved in 73% of all child trafficking reports that the National Center for Missing and Exploited Children (NCMEC) receives from the general public (excluding reports by Backpage itself).”
While the subject of regulating interactive computer service providers is delicate and highly controversial, there are companies, like Backpage.com, who have been able to claim immunity from being held liable under the Communications Decency Act.
The Craigslist Reaction to FOSTA
A majority of the concerns regarding this Act revolve around the free speech implications of the legislation. In August 2017, ten technology trade groups co-authored a letter explaining this bill would have a “chilling effect” on interactive computer services, and they may not be wrong. Craigslist recently took down the “personals” section for its U.S. site, replacing it with a message that reads:
“US Congress just passed HR 1865, “FOSTA”, seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day. To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!”
The bill will not go into law until signed by the President; however, Craigslist’s response is one of many interpretations currently circulating around the Act.
What the Future Holds for Interactive Computer Service Providers
Under current federal law, websites cannot be held responsible for content published by third parties on their websites. The lack of regulation around these entities has produced new challenges that require more time to evaluate than the rate at which technology is progressing. For now, tech companies and their users are anxiously awaiting the decision as to whether this bill will be signed into law.
Priyanka Kasnavia has been writing blogs for Simmons and Fletcher, P.C., for the past two years. She is a rising 2L at the University of Houston Law Center and her expertise centers on research, search engine optimization, and content creation.