SESTA and FOSTA Are Cut from the Same Cloth. Both Would Be Disastrous for Online Communities
There are two bills racing through Congress that would undermine your right to free expression online and threaten the online communities that we all rely on. The Stop Enabling Sex Traffickers Act (SESTA, S. 1693) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) might sound noble, but they would do nothing to fight sex traffickers. What they would do is force online web platforms to police their users’ activity much more stringently than ever before, silencing a lot of innocent voices in the process.
We’ve already written extensively about SESTA and the dangers it would pose to online communities, but as the House of Representatives considers moving on FOSTA, it’s time to reiterate that all of the major flaws in SESTA are in FOSTA too.
Section 230 Protects Online Communities. Don’t Weaken It.
Contrary to SESTA’s supporters’ claims, Section 230 does nothing to protect platforms that are directly involved with breaking federal criminal law.
Like SESTA, FOSTA would erode a law referred to as Section 230. Passed in 1996, Section 230 says that online platforms can’t be held liable for their users’ speech, except in certain circumstances. Without Section 230, it would be extremely risky to host other people’s speech online: one lawsuit could destroy your company. Most social media sites wouldn’t exist, or they’d look very different from the ones we enjoy today.
Section 230 strikes an important balance for when and how online platforms can be held liable for their users’ speech. Contrary to SESTA’s supporters’ claims, Section 230 does nothing to protect platforms that are directly involved with breaking federal criminal law. If an Internet company is directly contributing to unlawful activity, the Department of Justice can and should prosecute it.
Under FOSTA, a site would be on the hook if a court simply found that someone had used it for sex trafficking purposes. The law would force platforms to become much more restrictive in their moderation policies, which is likely to disproportionately silence marginalized groups.
FOSTA carves an even bigger hole out of Section 230 than SESTA does. It defines the state law exemption to Section 230 more broadly, applying it to “any State criminal statute” related to sex trafficking. State sex trafficking laws are notoriously inconsistent: in Alaska and Massachusetts, for example, statutes define trafficking so broadly that they don’t require any indication that someone was forced or coerced into sex work. FOSTA could open the door to litigation far beyond the sex trafficking activities it’s intended to target.
Broad Criminal Law Would Hurt Legitimate Communities
Like SESTA, FOSTA expands federal sex trafficking law to sweep in third parties that unknowingly facilitate sex trafficking (like web platforms), but FOSTA defines those third parties even more broadly than SESTA does, criminalizing conduct by “any person or entity and by any means that furthers or in anyway aids or abets” sex trafficking. It even goes a step further by explicitly making it a crime to be a provider of an Internet service that was used for sex trafficking purposes, provided that you acted in “reckless disregard” of the possibility that your service could be used for trafficking (we’ve written already about the dangers of applying the “reckless disregard” standard to online intermediaries).
Remember, Congress already made it it a federal crime to “advertise” sex trafficking online, via the SAVE Act of 2015. No new law is necessary to prosecute platforms that knowingly facilitate sex trafficking ads. If the Department of Justice has failed to prosecute platforms that violate the SAVE Act, then lawmakers should demand an explanation. In the meantime, Congress shouldn’t pass laws threatening every other online community.
Bottom Line: These Bills Go After the Wrong Targets
It’s not pleasant to confront the dark realities of sex trafficking, but Congress must. Otherwise, it risks passing a bill that would harm the very victims it’s trying to help.
We’ve talked a lot about the damage that SESTA and FOSTA would do to speech and communities online. Just as important is what they would not do: fight sex trafficking.
SESTA and FOSTA are perfect examples of Congress choosing an easy target rather than the right target. It’s easy to prosecute Internet companies, but Congress must do the serious work of understanding trafficking—its causes, its perpetrators, and the online tools law enforcement can use to fight it—and find better solutions to find and punish traffickers.
Since SESTA and FOSTA were first introduced, many experts in sex trafficking have stepped forward to explain that these bills are the wrong solution—that they would put victims of sex trafficking in much worse predicaments, moving them from the safety of the Internet to a dangerous street—where they are much less likely to get help.
It’s not pleasant to confront the dark realities of sex trafficking, but Congress must. Otherwise, it risks passing a bill that would harm the very victims it’s trying to help.
