First Amendment Watchdogs Warily Regard Passage of FOSTA

by Jackson Walker
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Jackson Walker

In March, the Senate almost unanimously passed the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”). On April 11, President Trump signed FOSTA into law. As the name implies, Congress’ goal is to give law enforcement additional means to pursue sex traffickers and allow victims broader ability to seek civil recovery. No one can argue with these lofty goals — and witnessing any bill receive bipartisan support is heartening in the current political climate. So why are First Amendment watchdogs concerned about such a well-intentioned new law?

FOSTA amends Section 230 of the Communications Decency Act of 1996 (“CDA 230”). But before your eyes glaze over at yet another acronym — this bit of alphabet soup is what many believe gave us the Internet as it exists today. CDA 230 generally immunizes online and social media services from lawsuits that seek to treat them as the publisher or speaker of the content their users post. The most common analogy is that of a library, with user generated content as the books. The immunity was meant to incentivize online services to set and enforce community standards on their platforms. In other words, a platform could undertake efforts to police user generated content without incurring liability for what they might (or might not) uncover.

While CDA 230’s legal framework allowed online and social media innovations to flourish, it also sparked controversy when the broad immunity was applied to the more unsavory areas of the Internet. Of particular concern to Congress was the successful use of CDA 230 by Backpage.com in connection with ads for the sex workers. This galvanized action for FOSTA, which creates a new federal criminal offense that prohibits the use or operation of an interactive computer service to intentionally “promote or facilitate” prostitution of another person.

FOSTA clarifies that CDA 230 “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex-trafficking victims.” It also provides the “sense of Congress” that websites have been “reckless” and “done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”

FOSTA specifically amends CDA 230 to retroactively withdraw immunity from:

(1) state criminal laws if the conduct would constitute federal sex trafficking crimes under 18 USC 1591 or 18 USC 2421A (and promotion or facilitation of prostitution is illegal in the jurisdiction where the prostitution was targeted); and

(2) civil suits under 18 USC 1595 brought by victims of sex trafficking.

During debates over the bill, free speech advocates and even the Department of Justice (“DOJ”) expressed concern about FOSTA’s effects. The Electronic Frontier Foundation, a nonprofit for free speech and digital privacy, worried that the increased potential for liability will cause online services to become much more restrictive and “err on the side of censorship.” Eric Goldman, Professor at Santa Clara University School of Law and author of the Technology and Marketing Law Blog, strongly opposed the law but advocated for an amendment to clarify that undertaking “socially valuable content moderation efforts won’t count against online services.” That proposal was largely contained in a failed amendment proposed by Senator Wyden. The DOJ objected to FOSTA as unconstitutional because its retroactive nature violates the Ex Post Facto Clause, which precludes punishment for an act that was not punishable when committed.

In the aftermath of FOSTA’s passage, it seems the fears of free speech advocates are not wholly unfounded. Before President Trump even signed the bill, Craigslist posted this statement:

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!

In an oddly timed twist of fate, days before the passage of FOSTA, Backpage.com was shutdown by the federal government. It seems FOSTA was unnecessary to produce a 93-count indictment against Backpage.com’s founders and others.

Looking ahead, it is unclear how courts will interpret FOSTA’s provisions or whether FOSTA can withstand constitutional scrutiny. To be certain, free speech advocates and online service providers should continue to closely monitor these new developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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