The House Judiciary Committee is about to decide whether to approve a new version of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865 ), a bill that would force online platforms to police their users'
speech more closely.
The new version of FOSTA improves a deeply problematic bill, but it still represents the same fundamentally flawed approach to fighting criminal activity online. Like the earlier version of FOSTA --and like SESTA ( S. 1693 ), its sibling bill in
the Senate --the new version of FOSTA would do nothing to fight traffickers . What it would do is create more risk of criminal and civil liability for online platforms, resulting in them pushing legitimate voices offline.Closing Online Spaces
Won't End Trafficking
Automated filters can be useful as an aid to transparent, human moderation, but when they're given the final say over who can and can't speak online, innocent users are invariably pushed offline.
One of the most egregious problems with FOSTA and SESTA is the difficulty of determining whether a given posting online was created in aid of sex trafficking. Even if you can assess that a given posting is an advertisement for sex work--which can
be far from obvious--how can a platform determine whether force or coercion played a role? Under SESTA, that uncertainty would force platforms to err on the side of censorship.
SESTA supporters consistently underestimate this difficulty, even suggesting it should be trivial for web platforms to build bots that remove posts in aid of sex trafficking but keep everything else up. That's simply not true: automated filters
can be useful as an aid to transparent, human moderation, but when they're given the final say over who can and can't speak online, innocent users are invariably pushed offline .
The House Judiciary Committee appears to have attempted to sidestep this problem, but it's potentially created a larger problem in the process. That's because the new version of FOSTA isn't primarily a sex trafficking bill; it's a prostitution
bill. This bill would expand federal prostitution law such that online platforms would have to take down any posts that could potentially be in support of any sex work, regardless of whether there's any indication of force or coercion, or whether
minors were involved.
The bill includes increased penalties if a court finds that the offense constituted a violation of federal sex trafficking law, or that a platform facilitated prostitution of five or more people. As Professor Eric Goldman points out in his
excellent analysis of the bill , the threshold of five prostitutes would implicate nearly any online platform that facilitates prostitution. If a prosecutor could convince a judge that a platform had had the intent to facilitate prostitution,
then those enhanced penalties would be on the table.
It's easy to see the effect that those extreme penalties would have on online speech. The bill would push platforms to become more restrictive in their treatment of sexual speech, out of fear of criminal liability if a court found that they'd had
the intent to facilitate prostitution. Ironically, such measures would make it more difficult for law enforcement to find and stop traffickers .Section 230 Is Still Not Broken
Some supporters of SESTA and FOSTA wrongly claim that Section 230 (the law protecting online platforms from some types of liability for their users' speech) prevents any civil lawsuits against online intermediaries for user-created material that
they host. That's not true. Fair Housing Council of San Fernando Valley v. Roommates.com set a standard for when a platform loses Section 230 immunity in civil litigation --when the intermediary has contributed to the illegal nature of the
content. As the Ninth Circuit said: A website helps to develop unlawful content, and thus falls within the exception to Section 230, if it contributes materially to the alleged illegality of the conduct.
We think the authors of this new version of FOSTA attempted to acknowledge the Roommates.com line of cases that discuss when a platform will lose Section 230 immunity against a civil claim. However, courts assume that Congress doesn't write
superfluous language. With that in mind, the new FOSTA can be read to authorize civil claims against platforms for user-generated content beyond what existing case law has allowed. The bill would allow civil suits against platforms that were
responsible for the creation or development of all or part of the information or content provided through any interactive computer service.
That distinction between contributing to part of the content and materially contributing to the illegal nature of the content is an extremely important one. The former could describe routine tasks that online community managers perform every day.
It's dangerous to pass a bill that could create civil liability for the everyday work of running a discussion board or other online platform. The liability would be too high to stay in business, particularly for nonprofit and community-based
platforms.Bottom Line: SESTA and FOSTA Are the Wrong Approach
With this new version of FOSTA, House Judiciary Committee Chair Bob Goodlatte and his colleagues on the Committee have clearly attempted to narrow the types of platforms that would be liable for third-party content that reflects sex trafficking.
But a less bad bill is not the same thing as a good bill. Like SESTA, the proposed new FOSTA bill would result in platforms becoming more restrictive in how they manage their online communities. And like SESTA, it would do nothing to fight sex
Supporting bills like FOSTA and SESTA might help members of Congress score political points with their constituents, but Congress must do better. It's urgent that Congress seek real solutions to finding and apprehending sex traffickers, not
creating more censorship online.
Yesterday, the House Judiciary Committee passed a new version of H.R. 1865, a bill that would allow federal authorities the ability to prosecute sites where sex workers advertise and communicate with clients 204 even if the sexual exchange is
only alluded to and never completed.
A federal appeals court has opened the door to legalising prostitution in California. The 9th US Circuit Court of Appeals in San Francisco recently allowed a legal challenge to the statewide ban on prostitution to proceed.
During the hearing, conservative Judge Carlos Bea wondered aloud: Why should it be illegal to sell something that it's legal to give away?
The case was originally filed in 2015 by three unidentified former sex workers, one potential client and the San Francisco-based Erotic Service Provider Legal, Educational and Research Project (ESPLERP).
The plaintiffs argue that the 145-year ban unfairly deprives consenting adults of the right to private activity, criminalises the discussion of such activity, and unconstitutionally places prohibitions on individuals' right to freely associate.
Louis Sirkin, an attorney for the plaintiffs, cited a Supreme Court decision that struck down gay sex bans as evidence for their case. The 2003 ruling, in Lawrence vs. Texas, found that consensual sexual conduct was part of the personal and
private life of the individual, and protected by the due process liberty right.
Backpage.com, a classified advertising website, has censored its adult advertising section after being threatened by the authorities.
But the action has had little effect on the posting of similar sex-related advertisements in other subsections of the site, Jenks police say.
Jason Weis, a Jenks Police Department officer said many of the advertisements that transitioned to other sections of the website were duplicates of what one would have found in the adult advertising section. He said:
It took no longer than 30 minutes to an hour for it to go to the women-seeking-men (dating) page.
Sgt. Todd Evans said he noticed the same trend after the adult section shut down. He's heard the same from police in Oklahoma City. He said:
What we anticipate right now is with Backpage shutting down its adult services, that doesn't mean all these people are just going to give up and go away. They're just going to find a different place to go.
Evans said he still sees prostitution ads on the website, albeit fewer -- though he said there are still plenty.
Backpage.com, one of the world's largest classified ad websites and a frequent target in the political battle against sex work, closed its adult ads section Monday in the United States after becoming the victim of a government witch hunt.
The move came shortly after the release of a U.S. Senate report that accused Backpage of hiding criminal activity by deleting terms from ads that indicated prostitution.
The abrupt closure came on the eve of the scheduled testimony of Backpage's founders, Michael Lacey and James Larkin, and the site's CEO, Carl Ferrer, before the Senate Committee on Homeland Security and Governmental Affairs' subcommittee on
To keep problematic ads online, the company edited them. One moderator said he removed material that was obviously indicative of prostitution but the post remained published. According to the Senate report, the moderator testified under oath: [M]y responsibility was to make the ads OK to run live on the site, because having to get rid of the ad altogether was bad for business.
By late Monday, visitors to Backpage saw censored tags in red font under the adult section's menu of escorts, body rubs and strippers. Other sections remained operative, including for cars, real estate and childcare. Backpage said:
Like the decision by Craigslist to remove its adult category in 2010, this announcement is the culmination of years of effort by government at various levels to exert pressure on Backpage.com and to make it too costly to continue.