Revised FOSTA is a big improvement over SESTA—but still not perfect

by on December 15, 2017 · 0 comments

The house version of the Stop Enabling Sex Trafficking Act (SESTA), called the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), has undergone significant changes that appear to enable it to both truly address the scourge of online sex trafficking and maintain important internet liability protection that encourages a free and open internet. On Tuesday, this amended version passed the House Judiciary Committee. Like most legislation, this latest draft isn’t perfect. But it has made significant steps towards maintaining freedom online while addressing the misdeeds of a few.

The Good

First, the new version creates a new crime that targets online sex traffickers and those wrong-doers who intentionally promote or facilitate their actions. Earlier versions of the House and Senate sex trafficking bills created mens rea, or state of mind, issues whereby a website was compelled to engage in strict moderation for fear of something “falling through the cracks” while encouraging good behavior on the part of intermediaries. The new FOSTA proposal substitutes a higher standard, which largely obviates these concerns.

The revised bill also clearly focuses on sex trafficking and online prostitution rather than attacking potential “bad actions” online more generally. Even so, some are concerned about the impact this revised focus may have on consensual transactions or protected (even if objectionable) speech. However, combined with the creation of a new crime under the Mann Act, it appears to remove most of the early concerns that the new law could be applied too broadly and chip away at Section 230. Indeed, the language of the new bill makes it clear that Section 230 was “never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and contribute to sex trafficking.”

The revised bill creates civil liability only when a violation of the new criminal law has already occurred. This prevents someone from going after an intermediary merely because they have “deeper pockets” than the actual perpetrators. By requiring an intermediary also be guilty of a criminal violation, it limits the likelihood that individuals would be successful in such suits except in cases where the website had knowingly facilitated or actively encouraged such violations of the law.

Finally, the revised FOSTA relies on a national standard instead of a patchwork of state law claims. Given the truly global nature of the Internet, this provides greater certainty for intermediaries regarding under what standard they will be held liable.

The Remaining Questions/Concerns

The current version of the bill uses a standard of 5+ victims for the new criminal enhancement. But there is a problem with using a raw number of victims, as Eric Goldman points out.  He lays out a thought experiment: let’s say that a  larger website like Google or Facebook, has  0.01% of its usage dedicated to prostitution. That’s about 100,000 people. Goldman points out that even if these companies were 99.99% compliant in taking down this activity—a worthy feat, to be sure—some would surely still fall through the cracks. The 5+ standard could make the social platforms look like “hotbeds of prostitution activity” despite their best intentions. A simple solution would be to switch from a raw number of “victims” to a percentage of users or revenues before attaching criminal or civil liability.

Additionally, there are some concerns about whether the new law could still make things worse for victims. As one advocate wrote, putting victims on the street rather than online may make them much more likely to be subject to violence and may make it more difficult to identify and assist trafficking victims. Unfortunately, the dangers and harms associated with trafficking and sex work cannot be resolved by a single bill.

 

Like most legislation, FOSTA is not perfect, but the current version does avoid the most damaging elements of earlier iterations. The changes also show that legislators are becoming aware of the possible unintended consequences that broader legislation could lead to.

Previous post: