Free Expression Groups Express Concern Over FOSTA [4]

On April 11, President Trump signed the controversial “Allow States and Victims to Fight Online Sex Trafficking Act [6]” (nicknamed “FOSTA”) into law, which authorizes prosecutors to target websites that host sex trafficking advertisements and creates new civil liability for the sites. Advocates for free expression online have voiced concern regarding what repercussions the law will have for the First Amendment.

The bill, which combined an earlier version of FOSTA with Senate Bill 1693 [7], “Stop Enabling Sex Traffickers Act” (SESTA), amends four federal laws, as reported by the Washington Post [8]. FOSTA amends the Communications Decency Act by stating that it “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution”; it amends the Mann Act by prohibiting the use of a website to “promote or to facilitate the prostitution of another person”; it amends the law on sex trafficking of children and broadens the phrase “participating in a venture” to include “knowingly assisting, supporting or facilitating a violation” of the law; and it grants states’ attorneys general the power to bring suits against violators of federal prostitution laws.

Anti-censorship advocates have raised concerns about FOSTA’s larger implications for free speech on the Internet — particularly in that it undermines Section 230 [9] of the Communications Decency Act. Section 230 offers crucial protections for free expression online by stating that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” However, FOSTA now establishes liability of the computer service provider for “information provided by another information content provider” in the case of content promoting prostitution.

On its website, the Center for Democracy & Technology (CDT) [10] argues that the law could have a chilling effect on all speech. Treating websites as publishers of information means that “risk-averse platforms will likely block too much content to avoid criminal liability and civil claims. This will inhibit everyone’s ability to speak freely and to access information.” CDT also stresses that if YouTube or Craigslist were responsible for everyone one of its users’ posts, “the companies would flounder under the sheer volume of content to review.”

Indeed, after the Senate passed FOSTA last month, a number of websites, including Craigslist, began shutting down sections that might be construed as sex-related, as reported by the Post.

CDT’s Emma Llanso told the Post that website publishers may not be aware of suspicious content on their site. She said there is concern that the new law may discourage website publishers from moderating their websites for fear they will be accused of knowing about bad content.

The Electronic Frontier Foundation [11] (EFF), an organization that defends civil liberties online, explained why liability for third party content under FOSTA could result in censorship:

“Facing the risk of ruinous litigation, online platforms will have little choice but to become much more restrictive in what sorts of discussion — and what sorts of users — they allow, censoring innocent people in the process. What forms that erasure takes will vary from platform to platform. For some, it will mean increasingly restrictive terms of service — banning sexual content, for example, or advertisements for legal escort services. For others, it will mean over-reliance on automated filters to delete borderline posts. No matter what methods platforms use to mitigate their risk, one thing is certain: when platforms choose to err on the side of censorship, marginalized voices are censored disproportionately. The Internet will become a less inclusive place, something that hurts all of us.”

Activists advocating for the safety of trafficking victims and sex workers have argued that the bill’s implications for free speech are detrimental to the groups they work to protect. In a letter [12] to the U.S. Senate Committee on Commerce, Science, and Transportation, Kirsten DiAngelo, executive director of the Sacramento Sex Workers Outreach Project, and herself a survivor of sex trafficking, writes, “SESTA would do nothing to decrease sex trafficking; in fact, it would have the opposite effect. It would impede free speech and punish venues that allow trafficking victims to escape the streets. When trafficking victims are pushed off of online platforms and onto the streets, we become invisible to the outside world as well as to law enforcement, thus putting us in more danger of violence.”

On its national website [13], the Sex Workers Outreach Project refers to SESTA as a “disguised Internet censorship bill,” asserting that it “is not at all what it claims to be. It boasts of being the answer to uncovering and punishing those engaged in sex trafficking online but what it actually is about is Internet censorship,” pointing out that overly broad language both wrongfully conflates consensual sex work with trafficking and could leave websites facilitating consensual online activity, such as dating sites, vulnerable to prosecution. EFF points out that it could even be used to prosecute platform owners that aren’t aware their sites are being used for trafficking.