FOSTA: The New Anti-Sex-Trafficking Legislation May Not End the Internet, But It’s Not Good Law Either

Amid the chaos of the last week, one of the most significant pieces of internet legislation of the last two decades went relatively unnoticed. Most people likely had no idea that Congress was moving full steam ahead on altering a law that some credit for “why we have the internet.” And so it did: On March 21, the Senate passed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA).

Although the president has yet to sign the legislation, the bill’s effects are already being felt. FOSTA (known in a previous form as SESTA, or the Stop Enabling Sex Traffickers Act) amends Section 230 of the Communications Decency Act, which provides tech companies immunity from most liability for publishing third-party content. Currently, only federal criminal law, intellectual property laws, and the Electronic Communications Privacy Act fall outside the immunity provision. In the years since its enactment in 1996, Section 230 has been characterized as “the Magna Carta of the internet,” as Alan Rozenshtein wrote recently on Lawfare. For its supporters, Section 230 immunity is credited with enabling the growth of online platforms as safe-havens for speech, even speech that platforms would be responsible for if it was expressed offline.

For the first time in twenty years, FOSTA carves out an additional statutory exception for that immunity. The idea is that online platforms should face the same liability for enabling illegal sex-trafficking, as offline outlets do. According to the bill’s oddly-phrased “Sense of Congress” introduction, Section 230 was “never intended to provide legal protection to websites . . . that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” That provision continues, “[i]t is the sense of Congress that websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”

FOSTA then goes on to provide that technology companies will not be shielded from civil liability if they knowingly assist, support, or facilitate advertising activity that violates federal sex-trafficking law, specifically 18 USC 1591. (Section 230 does not immunize platforms from federal criminal liability.) Currently, advertisers are liable under Section 1591(a)(2) if they knowingly benefit from outlawed ads. FOSTA not only carves out an exception to Section 230 immunity for violations of Section 1591, but it also redefines what constitutes a Section 1591 violation to include “knowingly assisting, supporting, or facilitating” advertising.

Under the new law, state attorneys general, as parens patriae, can seek civil penalties for such activity. Additionally, technology companies could face state criminal charges if the conduct charged would constitute a violation of Section 1591. Companies could also be criminally liable in state court for violations of 18 USC 2421A, a new section added by FOSTA to the Mann Act, which prohibits transporting a person across state line “with intent that such individual engage in prostitution” or other criminal sexual activity. Section 2421A criminalizes the owning, management, or operation of a platform “with the intent to promote or facilitate” prostitution.

The law’s status as the first legislative incursion against Section 230 led to intense controversy over its drafting and passage. Initially, the arguments proceeded predictably. Anti-sex-trafficking advocates offered their strong support, portraying technology companies like Google as “allies” of human traffickers. Leading the opposition, internet freedom advocates argued that limiting Section 230 immunity would “endanger … free expression and innovation online.” Sex workers and some advocates for sex trafficking victims and survivors voiced concerns that clamping down on advertisements for sex online could place women in danger by forcing them to find work on the street and limiting their ability to vet clients.

At first, tech companies lined up in lockstep against the bill. But then the seemingly impossible happened: The platforms’ opposition receded. Perhaps because the climate on the Hill was increasingly inhospitable to the major social media companies given their role in L’Affaire Russe and perhaps because the writing was on the wall, the Internet Association (which represents Facebook, Google, Microsoft, and other big tech companies) endorsed the legislation after Senate staff changed the bill to head off some of its excesses.

As FOSTA awaits the president’s signature, major platforms are already doing damage control. Two days after the bill passed the Senate, Craigslist closed its personal ads section, which was often used to post solicitations for sex. Pointing to FOSTA, the advertising hub wrote, “Any tool or service can be misused. We can't take such risk without jeopardizing all our other services…” Likewise, Reddit announced a new sitewide policy prohibiting users from “solicit[ing] or facilitat[ing] any transaction or gift involving certain goods and services, including … [p]aid services involving physical sexual contact.” Reddit continued to invoke the typical catch-all denial of responsibility for transactions users might undertake, adding, with apparent irony, “Always remember: you are dealing with strangers on the internet.” Sex workers posting on forums and blogs have been tallying lists of websites that have shut down or removed U.S.-based advertisements. The sex ad market, however, has not collapsed: other websites remain open, at least for now.

Though neither Reddit nor the shuttered adult-advertising websites cited FOSTA, the timing hints at the legislation’s influence. House Judiciary Committee Chairman Bob Goodlatte, who pushed FOSTA forward in the House of Representatives, appeared to claim credit for the culling: