State and federal lawmakers have been grappling for some time over what to do about certain websites that promote prostitution and child sex trafficking. One challenge in doing so is Communications Decency Act Section 230 (CDA230) which immunizes websites for third-party content (subject to certain exceptions) and which has been used to dismiss criminal charges against websites such as Backpage.com for third-party prostitution ads.
The dynamic of this debate changed in 2017 when the Senate Investigations Subcommittee found that Backpage was knowingly facilitating prostitution and even child sex trafficking.
Congress jumped in, with Senator Portman(R-OH) introducing the Stop Enabling Sex Traffickers Act of 2017 (SESTA) and Representative Wagner (R-MO) introducing the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA). The tech community initially was united in opposition to the legislation out of concerns creating a carve-out to CDA230 would “bring a deluge of frivolous litigation targeting legitimate, law-abiding intermediaries and create the potential for unpredictable, inconsistent enforcement by state authorities for political or monetary gain.”
In November, the tech giants folded and supported an amended version of SESTA as it was approved by the Senate Commerce Committee. CDA230 author Senator Wyden (D-OR) promptly put a hold on the legislation, stressing;
I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favor big tech companies at the expense of startups and that it will stifle innovation.
In December, the House Judiciary Committee approved an amended version of FOSTA, sending the bill to the House Energy & Commerce Committee for sequential consideration.
Last week, the Energy & Commerce Committee discharged FOSTA and yesterday the House overwhelming approved yet another substitute version even as the Justice Department raised concerns about the bill’s constitutionality and that it would negatively “impact prosecutions by effectively creating additional elements that prosecutors must prove at trial.”
Rep. Lofgren (D-CA) rose in opposition to the bill, noting;
The Justice Department says in this letter that they believe any revision to define “participation in a venture” is unnecessary and in fact that the new language would impact prosecutions by effectively creating additional elements in fact they say the amendment will make it harder to prosecute…There’s a thing we get told in law school: Bad cases make bad law. One of the ways to avoid that is to have the committee process work through it. That didn’t happen….
Nonetheless, the amended version was adopted and approved by the House 388-25.
The White House has praised the legislation for providing “important tools for federal prosecutors and state officials to fight the scourge of sex trafficking,” but expressed concern over issues raised by the Justice Department “and hopes that these issues can be resolved in a final bill presented to the president for signature.”
Senator Wyden, however, took a different tone and reemphasized his opposition to the bill:
History shows that politicians have been remarkably bad at solving technological problems. I have written laws in the past, including Section 230 of the Communications Decency Act and the Internet Tax Freedom Act, that have kept politicians and special interests from sinking the internet.This bill will only prop up the entrenched players who are rapidly losing the public’s trust. The failure to understand the technological side effects of this bill – specifically that it will become harder to expose sex-traffickers, while hamstringing innovation – will be something that this congress will regret.
I take a backseat to no one when it comes to fighting sex trafficking and locking up the monsters who prey on the defenseless. I have authored laws to support victims and provide ongoing funding paid for by those convicted of heinous crimes against children, and authored laws to improve the child welfare system to help prevent children from becoming victims in the first place. However, the bill passed today by the House will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.
Similarly, Evan Engstrom, executive director of the San Francisco-based startup advocacy group Engine, warned against rushing to pass the bill given the Justice Department concerns.
Congress had the chance to pass a good bill that helps law enforcement go after bad actors and protects the startups who are working in good faith to crack down on sex trafficking content on their platforms. Instead lawmakers rushed through a flawed proposal without fully considering the consequences.
He argued that the legislation would be
hijacked by trial lawyers pushing language that won’t help sex trafficking victims, but would penalize websites that have unknowingly hosted illegal user-generated content.
The House-passed version of FOSTA is below.
SESTA On CLBR
Listen to both sides of the SESTA debate with Taina Bien-Aimé of the Coalition Against Trafficking in Women and Santa Clara University Law School Professor Eric Goldman.