Are we having fun yet? FOSTA/SESTA (“FOSTA”) has been around for a full year now and has managed to wreak significant havoc on the internet. Sold to Congress as a law to combat “sex trafficking,” FOSTA has instead endangered sex workers and forced massive online censorship by private companies fearing enhanced civil and criminal liability. Unless the law is struck down by the courts, things will get worse.
Early versions of the bill focused exclusively on amending Section 230 immunity, which broadly protects interactive computer services from claims based on user content. Congress decided that online intermediaries enjoyed too much protection when it came to sex trafficking, so it began looking at ways to carve out sex trafficking claims from the scope of the immunity.
Over the last year, FOSTA has proved to be unnecessary, dangerous to sex workers, a hindrance to law enforcement and an impediment to free speech.
The proposed change was supposedly necessary to allow the government to take down Backpage.com, which had fended off claims by asserting Section 230 defenses for years. The idea of tinkering with Section 230 immunity was bad enough on its own, since it exposed online platforms to expansive liability for sex trafficking claims if they did not take sufficient action to root out users involved with this criminal activity.
Eliminating this important legal protection creates significant problems for smaller platforms or startups, which cannot afford expensive artificial intelligence tools and an army of human moderators looking for anything that might resemble sex trafficking on their servers. The level of proof that might be required to hold an internet intermediary responsible for sex trafficking offenses is not clear under FOSTA, so companies braced for potential exposure based on the slightest hint of abusive user posts.
But Congress was not content to focus solely on illegal sex trafficking. While they were at it, lawmakers figured they would tackle consensual sex work as well. This proposed addition to the bill was opposed by free speech groups, trafficking survivors and the DOJ, itself. Nevertheless, in late February 2018, the House Judiciary Committee approved an amendment to FOSTA, which created a new federal prohibition on using an interactive computer service to promote or facilitate prostitution. The amendment did not bother to define the terms “promote” or “facilitate” or even “prostitution.”
The bill, including the amendment dealing with consensual sex work, was pushed through the legislative process and signed into law on April 11, 2018. Now, online platforms could be sued or prosecuted in state or federal court, if their services were used by third parties to promote or facilitate prostitution. Congress had officially broken the internet. Notably, however, Backpage.com was taken down by federal authorities in the weeks before FOSTA was signed, raising the obvious question whether the law was necessary in the first place.
In the immediate aftermath of FOSTA, Craigslist.org killed its entire personals section, given the uncertain risks it now faced. Dozens of other websites went dark, including numerous sites that provided harm reduction information and “bad date” lists that sex workers used to keep themselves safe from abuse. Banks, payment processors, hosts and other service providers began cancelling accounts of customers whose sites might be used to promote or facilitate prostitution.
The undefined prohibitions included in FOSTA, along with the draconian prison sentences for violations, forced online service providers to steer far clear of any content or speech that may be related to prostitution. It is not hard to imagine the difficulty facing large internet platforms which were suddenly forced to determine with certainty whether adult content posted by users might be associated with some definition of prostitution, in some geographic jurisdiction.
The legal exposure and uncertainty proved to be too much for many companies to bear, resulting in a huge swath of protected speech being wiped from the internet. Instead of directly prohibiting adult content itself, the government incentivized online platform providers to do the dirty work.
Fast forward to spring of 2019: Tumblr has removed all adult content, and Facebook prohibits virtually all discussion of sexual activity. Instagram demotes any sexually suggestive content on the grounds it may be “inappropriate.” Countless smaller sites have disappeared, and many startups cancelled their plans due to the increased legal risks. Consensual sex workers are facing increased violence, as they are driven from the internet onto the streets, and into the hands of dangerous people. Their online safety and harm reduction tools have been taken away by FOSTA, so they accept more risk in their customer interactions. A recent study showed that use of Craigslist’s erotic services section by sex workers resulted in a 17 percent decrease in female homicide rate — attributed primarily to the (previous) ability of sex workers to vet their clients and take their business indoors.
Police tasked with the job of fighting actual sex trafficking have found their jobs much harder after the closure of sites like Backpage.com, which historically provided a treasure trove of information for trafficking investigations when subpoenaed. Ironically, San Francisco has reported a 170% spike in sex trafficking incidents as a result of FOSTA. This is to be expected, as even the DOJ said that FOSTA would make their job of prosecuting traffickers more difficult. A non-profit sex worker clinic noted that the law suddenly re-empowered a whole underclass of pimps and exploiters. In sum, FOSTA has sanitized the internet of erotic speech, has increased trafficking and has created a dangerous climate for sex workers.
Some lawmakers are even calling for new exemptions to Section 230, in response to alleged abuse of the protected status by online intermediaries. Representative Nancy Pelosi, Senator Ron Wyden and Senator Joe Manchin have all warned that Section 230 may be amended again, or eliminated, given the mounting political pressures in Congress. As a result, FOSTA may be only the beginning of a dangerous trend.
Despite this adversity, there have been some encouraging developments. The sex worker community has found its voice and become mobilized. Decriminalization of sex work is now part of the national debate. Democratic presidential candidates are being pressed to defend their views on FOSTA and sex work while campaigning. States are passing laws designed to protect underage trafficking victims from being charged as prostitutes. The media is finally discussing the negative impacts that can result from overly aggressive sex trafficking laws and investigations.
Notwithstanding some impassioned advocacy against the new law, Congress is not likely to repeal FOSTA. Just as most politicians found it impossible to oppose a law branded as “anti-sex trafficking,” they will find it equally impossible to support a repeal. Amendments to the law are theoretically possible, but significant damage has already been done. Speech has been silenced, and FOSTA actively chills online communication on the topic of human sexuality.
However, some are fighting FOSTA in the courts. The Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch and others have mounted a constitutional challenge in Washington, D.C. The suit argues that FOSTA violates the First and Fifth Amendments to the Constitution, since it is overbroad, vague and applies to conduct that occurred even before the law was passed. The case is currently on appeal to the D.C. Circuit, after an initial ruling that the plaintiffs did not have legal standing to raise the constitutional issues. The plaintiffs have been supported by numerous advocacy groups such as Reddit, the Center for Democracy and Technology, and the Institute for Free Speech, as amici curiae in the appeal. The parties are hopeful, but the damage FOSTA has caused to the First Amendment is undeniable. The ethos of the internet has changed in the course of a year. However, the courts have the power to fix this.
In 1996, Congress passed an equally dangerous law (the Communications Decency Act), which prohibited all “indecent” content on the internet. Online freedom fighters quickly mobilized to fight that law under the iconic “Blue Ribbon Campaign.” The U.S. Supreme Court unanimously held that such a broad prohibition on erotic speech violated the First Amendment, despite its purported goal in protecting children from viewing adult materials. Some 20 years later, Congress made the same mistake, but dressed up this censorship effort as a law to combat sex trafficking. Censorship of protected speech is not a price that Americans should be willing to pay to achieve politically attractive goals.
The government did not need FOSTA to seize Backpage.com, or to prosecute numerous other websites alleged to be directly involved with promoting prostitution. Existing federal law already supports those efforts. Over the last year, FOSTA has proved to be unnecessary, dangerous to sex workers, a hindrance to law enforcement and an impediment to free speech. Ultimately, FOSTA’s constitutionality will be tested in the courts — whether in the current legal challenge or some future case. For now, we must endure an internet burdened by FOSTA while remaining hopeful that the law does not live to see its second birthday.
Lawrence G. Walters, Esq., heads up Walters Law Group and has represented website operators for more than 25 years. Nothing contained in the foregoing article is intended as legal advice. Please consult individual legal counsel with any questions or concerns.
